10 September 2016

ICANN Answers Questions About The IANA Stewardship Transition

Timely and informative, ICANN has posted a Q&A about the IANA Stewardship Transition, full version at the ICANN.org link further below, excerpts follow after the following DomainMondo.com introductory note:

[Note--In answering Question 7 below, ICANN failed to pose and answer the real underlying Question: Under what circumstances, and how, could ICANN decide to relocate outside the United States and/or change its principal legal jurisdiction or place of incorporation in the future? In 2014, ICANN's then President and CEO Fadi Chehadé told a panel of the French Senate that the ICANN Board of Directors had given a "green light" to possibly creating a "parallel ICANN international structure, likely based in Geneva ..." See Will ICANN Board Disclose New Swiss Legal Structure at ICANN 50? | DomainMondo.com citing Will ICANN Be The Next International Organisation In Geneva? | ip-watch.org and the actual video (in French)--note Chehade's reference to "green light" @2:35 and what he says at that point (English translation here). See also: Why ICANN CEO Chehade quit early | IoN magazine: "... he [Chehade] told a panel in the French Senate that ICANN’s new European office could lead to moving ICANN’s headquarters outside the United States; only to say the exact opposite when in Washington DC just a few weeks later." 

Chehadé, who for unknown reasons resigned effective March 12, 2016, after serving only 3½ years as ICANN President & CEO (14 Sep 2012-12 Mar 2016), announced at ICANN's NCPH Intersessional session, January 29, 2013:
",,, welcome to LA, welcome to ICANN. This is the last time you'll come to the ICANN headquarters because soon we will no longer have one headquarters, we'll have three headquarters around the world ..."
--end of Note.]

Answering some of your questions on the stewardship transition  ICANN.org: "... Some questions remain about the nature of the IANA functions, ICANN, and the likely impacts of the transition and we [ICANN] wanted to answer them for you in one place.

1. Does the transition threaten Internet freedom?

No. The United States Government's contract with ICANN does not give the U.S. any power to regulate or protect speech on the Internet. The IANA functions are technical – not content – based ... 

2. Will countries be able to censor speech on the Internet after the transition?

No more so than they can today. Right now, there is nothing about ICANN or its contract with the U.S. Government that prevents a country from censoring or blocking content within its own borders. ICANN is a technical organization and does not have the remit or ability to regulate content on the Internet ... 

3. Will ICANN be more susceptible to capture by a single entity after the transition?


No. ICANN's multistakeholder model is designed to ensure that no single entity, whether country, business or interest group, can capture ICANN or exclude other parties from decision-making processes. Features of this model include open processes where anyone can participate, decisions made by consensus, established appeals mechanisms, and transparent and public meetings. These elements are all reinforced in the community transition proposal and have been building blocks for the free and open Internet we see today ... 

4. Will ICANN seek oversight by the U.N. to maintain its antitrust exemption after the transition?


No. ICANN is not, and never has been exempted from antitrust laws. ICANN has not been granted an antitrust exemption through any of its contracts with NTIA or the U.S. Department of Commerce. No court ruling in favor of ICANN has ever cited an antitrust exemption to support its ruling. This past July,NTIA Administrator Larry Strickling addressed the concerns about the possible antitrust liability of a post-transition ICANN and reaffirmed that "ICANN always has and will continue to be subject to antitrust laws." After the transition, ICANN will have no mandate, need or reason to seek to be overseen by another governmental or inter-governmental group for protection ... 

5. Will governments have more control over the Internet after the transition?

No. The transition proposal does not increase the role of governments over the Internet or ICANN as an organization. The multistakeholder model appropriately limits the influence of governments and intergovernmental organizations to an advisory role in policy development. More than 160 governments actively participate as a single committee and must come to a consensus before policy advice can be issued. After the transition, there will be times where the ICANN Board must give special consideration to the public policy advice of governments. However, this will only happen when there is no objection from any government in the committee – which includes the United States. This is a stricter requirement than is currently in place for government advice.


6. Does delaying the transition by one or two years have any negative consequences?


Yes, any delay of the transition could have significant global consequences. The Internet is a voluntary, trust-based system. A delay would introduce uncertainty, for businesses and other stakeholders, which could have long-term business, social, cultural, political and economic impacts. This past March, U.S. Ambassador David Gross testified that, "the clearest impact [of a delay] is on the broader, global community. It will signal that the U.S. has changed its position and no longer believes in a private-sector led internet and that governments will play a primary role in making the final decision. Russia, China, and others will welcome such a decision."...

7. Will ICANN relocate its headquarters outside of the United States after the transition?


No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California.


8. Is it illegal to allow the transition to move forward without congressional approval because it is a transfer of U.S. property?

No. ICANN is not aware of any U.S. Government property that would be transferred as a result of the transition. In a letter to Chairman Grassley and Chairman Goodlatte [PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce Office of General Counsel conducted a legal review of this issue and advised NTIA that transition would not result in the transfer of U.S. Government property, and that, in the view of the Department, the authoritative root zone file is not U.S. Government property.


9. Will the U.S. lose exclusive rights to the .mil and .gov top-level domains as a result of the transition?


The operation of and responsibility for .mil and .gov are not impacted by this transition. .mil and .gov cannot be reassigned without express approval from the U.S. Government. To formally reaffirm this,NTIA and ICANN exchanged a series of letters in June 2016, which establish the U.S. Government as the administrative authority over the .mil, .gov, .us, and .edu top-level domains. This means that any changes made to these top-level domains can only be made with the express written approval of the U.S. Government.

10. Will Verisign have the ability to raise prices of .com domain names on 1 October 2016 as a result of the transition?

No. The cost of .com domains is capped at $7.85 until 30 November 2018. The current pricing of the .com registry is defined by two separate contracts (1) the .com Registry Agreement between Verisign and ICANN; and (2) the Cooperative Agreement between Verisign and the Department of Commerce. After 2018, Verisign and NTIA will have to negotiate to change the terms for the Cooperative Agreement or agree to end the Cooperative Agreement before discussing new pricing of the .com domain with ICANN. In letters [PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week, the Assistant Attorney General stated that, consistent with past practices, it is expected that NTIA will seek the advice of the U.S. Department of Justice on any competition issues implicated by the extension of these two contracts.

11. Do the recent independent review process (IRP) decisions regarding applications for new generic top level domains prove that ICANN is not sufficiently transparent or accountable enough for the transition?

No. An IRP is an accountability mechanism used to review and resolve a concern raised by the community over a policy decision made by ICANN. Any result from an IRP, whether positive or negative, demonstrates that the system of checks and balances built into the ICANN multistakeholder model works. The IRP has been enhanced to strengthen ICANN's commitment to employ open, transparent, bottom-up, multistakeholder processes after the transition.

12. Does ICANN have an operational relationship with the Chinese government?

No. ICANN does not have any operational relationship with the Chinese Government. ICANN's engagement center in China is one of seven around the world. The presence of an ICANN engagement center or operational hub within a country does not imply any level of support for the nation's government or its policies.

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