IANA Transition's Unanswered Questions Require An Extension?

Do the IANA Transition's Unanswered Questions Require An Extension of the IANA functions contract? "Yes" say Berin Szoka, President of TechFreedom (TechFeedom.org), Paul Rosenzweig, Visiting Fellow at The Heritage Foundation (heritage.org) and former Deputy Assistant Secretary for Policy in the Department of Homeland Security, and Brett Schaefer, Jay Kingham Senior Research Fellow in International Regulatory Affairs at The Heritage Foundation, in a September 8, 2016, white paper entitled ICANN Transition is Premature - Unanswered Questions Require an Extension (link is below), (note: the views expressed in the white paper reflect those of TechFreedom and the individual authors, but not necessarily those of The Heritage Foundation), excerpts:

Introduction:

Is the Internet ready for the U.S. government to give up its historic role as the ultimate guarantor of
Internet governance? Yes, insists the Obama Administration. Global stakeholders — users,
businesses, technical experts and civil society groups — will remain firmly in control, they assure us.

We’re skeptical. But before we tell you why, let’s make a few things clear. We support the multistakeholder model. We do not believe any government should control or own the Internet. We do not oppose the “Transition” — wherein multi-stakeholders would assume the current U.S. oversight responsibilities over the Internet Corporation for Assigned Names and Numbers (ICANN). But we do oppose rushing the Transition before critical questions are resolved. We recommend extending the contract for a year or two to vet the proposal and complete all of the reforms sought by the community.

Administration officials have stated repeatedly that “it is more important to get this issue right than it is to simply get it done.”5 However, as we near the end of President Obama’s second term, it is hard not to conclude that the Administration has become more concerned with getting this done right now than in getting it right. We wonder because of the many serious concerns surrounding the Transition that remain unresolved even as the Administration appears dead-set on moving forward regardless of the potential consequences.

We worry that approving the Transition prematurely will set the multi-stakeholder model up to fail. We fear that governments will gain new influence over the Internet, that Internet freedom will suffer, and that the ICANN leadership (CEO and staff) will continue its troubling pattern of
cavalierly ignoring its bylaws and procedures while the ICANN Community proves too fractious to
hold the leadership accountable.

What’s needed now is a “test drive” — a trial period of a year or two in which the U.S. withdraws
and allows the new ICANN to operate autonomously, but with the possibility of reasserting its traditional role if unforeseen problems arise, if ICANN resists additional reforms, or if the multistakeholder community determines that the new bylaws or governance structure are insufficient to hold ICANN accountable.
. . . .
Here are just the most prominent of our remaining concerns — and why they matter. We start with practical concerns and conclude with legal ones. Here’s a high-level list:

1. Whatever happens with the Transition, there’s no reason whatsoever to think authoritarian countries like Russia and China won’t try to exert greater control over the Internet and the long-term impact of the Transition on positions of other governments vis-à-vis U.N. governance of the Internet are unknown. 
2. It is unclear at best whether the multi-stakeholder community has the cohesion and resolve necessary to serve as an effective check on the ICANN Board post-Transition. 
3. Governments will have more power post-Transition than they do currently, and it is unclear how this will affect ICANN. 
4. Recent events revealed that ICANN has serious transparency and governance problems, which could make it vulnerable to corruption and abuse. 
5. The U.S. government’s role is a major reason why the ICANN Board has been willing to accept accountability measures, because the Transition is dependent on their adoption. But a number of important additional reforms will not be completed until after the Transition, and. failing to extend the contract may jeopardize their implementation. 
6. Substantial questions on ICANN’s jurisdiction, including where ICANN will be headquartered and incorporated and to which laws ICANN will be subject, remain unanswered. 
7. The U.S. failed to secure legal ownership and control of the .MIL and .GOV domains, which could create national security concerns in the future. 
8. The new ICANN bylaws may not be in line with California law, which could lead to legal and political challenges. 
9. If the Transition involves a transfer of property, ending the contract without congressional authorization would violate the Constitution. 
10. NTIA may have violated a funding prohibition if it fails to extend the contract. 
11. It is unclear that U.S. antitrust law will actually be an effective remedy (or deterrent) against anti-competitive behavior by ICANN, even the Transition doesn’t change its legal status. Yet foreign antitrust laws could be used strategically to portray ICANN as a cartel, and thus make the case for a shift to U.N. control. 
12. NTIA may have violated administrative law by failing to adequately consider public comments on the Transition directly, and instead relying on ICANN to do so on its behalf.

The complete white paper--ICANN Transition is Premature | Unanswered Questions Require an Extension (pdf).

UPDATE: Verisign White Paper Response Letter


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Coalition Letter Urging Congress To Sue NTIA and Delay IANA Transition

"We agree that Internet governance should work from the bottom up, driven by the global community of private sector, civil society and technical stakeholders. But that “multistakeholder” model is fragile. Without robust safeguards, Internet governance could fall under the sway of governments hostile to freedoms protected by the First Amendment. Ominously, governments will gain a formal voting role in ICANN for the first time when the new bylaws are implemented. NTIA has expressed its approval of this expanded role for governments in ICANN."--Coalition Letter (embed below)

A host of organizations and individuals, including Esther Dyson, ICANN's founding Chairman (1998-2000), and Brett Schaefer (Heritage Foundation), active participant in ICANN's CCWG-Accountability WS1 process which is part of the IANA Stewardship Transition Proposal approved in June by NTIA (pdf), have written a "coalition letter" (embed below) to the Republican and Democratic leaders of the U.S. House of Representatives and U.S. Senate, urging them to sue NTIA (U.S. Department of Commerce and Obama Administration):

"... Sen. Grassley and Rep. Goodlatte are correct: if NTIA allows the [IANA functions] contract to lapse, it will have violated federal law.* The decision to abandon an 18-year contractual relationship governing the Internet has obviously consumed significant NTIA resources, both to fund outside experts and to pay for time spent on the issue and on NTIA employees making a decision about whether to extend the contract. Again, Administrator Strickling himself acknowledged that the rider “does restrict NTIA from using appropriated dollars to relinquish our stewardship…. [of IANA].” Congress should make clear that it will sue to enforce the funding prohibition. As it did in 2014, the House needs to vote to authorize Speaker Ryan to sue to defend its Article I powers — not only the Power of the Purse but also the sole right to dispose of federal property, which the IANA function may well be. A federal court could issue a writ of mandamus, ordering NTIA to exercise the option to renew the contract, or a declaratory judgment that, if the IANA contract terminates, the IANA function contract rights revert to NTIA, not to ICANN. Such a ruling could effectively unwind the Transition. Congress should also renew the funding prohibition for FY2017 so that it has time to properly conduct its own assessment of whether ICANN is ready for the Transition. We acknowledge that the Administration's actions have raised expectations that the Transition is imminent and there will be some frustration in the ICANN community if the IANA contract is renewed again (as it was last summer). But far greater disruption would result if a U.S. court forced the reversal of the Transition after the fact. Rushing the Transition could also prove more disruptive than delaying it—for instance, by delegitimizing ICANN if its new governance structure proves too weak or fractious, or if ICANN becomes more vulnerable to antitrust lawsuits due to the expiration of its contractual relationship with the U.S. government ..." Coalition Letter (embed below)(emphasis added)

*citing in a footnote: "31 USC § 1341(a)(1)(A). See also 31 U.S.C § 1350 (fines up to $5,000 and prison terms up to 2 years)."

31 USC § 1341(a)(1) An officer or employee of the United States Government or of the District of Columbia government may not—(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;

Coalition Letter (highlighting added):



See also: ICANN, NTIA, IANA Transition, Fundamental Problems, the Macro View | DomainMondo.com 16 July 2016

and ICANN Board Transmits IANA Stewardship Transition Proposal and Enhancing ICANN Accountability Recommendations to NTIA | ICANN.org March 10, 2016


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