News Review: ICANN, IANA, NTIA, Congress, the American People

Domain Mondo's review of the past week and look ahead to the coming week [pdf of this post here]: The IANA transition and ICANN accountability proposal is currently being assessed by the U.S. Department of Commerce's NTIA, while implementation work proceeds within ICANN and Cross-Community Working Groups.

"As NTIA embarks on its work, I want to reiterate what I have been saying throughout this entire process. This IANA transition is far too important to be rushed by any artificial deadline. Much work still remains, and if needed, NTIA should take the steps to extend the contract. It is more important to get this done right, than to simply get it done. Lastly, while we await the analysis of the proposal from NTIA, it is important to stress the important role that Congress plays during this process. The bipartisan work reflected in the DOTCOM Act maintains our oversight authority to ensure the requirements of a transition established by NTIA are met by the proposal." --Chairman Greg Walden, March 17, 2016, Opening Statement - Communications and Technology Subcommittee Hearing “Privatizing the Internet Assigned Number Authority” (emphasis added).

"... Unfortunately, much of the ICANN community has been acting in haste and urgency based on a belief that the transition will not occur if the process extends beyond the expiry of the Obama administration. In reality, this haste and the inevitable imprecision and pressure-induced compromises that result is probably the greatest threat to the transition. The best prospect for the transition being approved is if it is sound, complete, and addresses the concerns of NTIA and Congress. The NTIA has emphasized over and over again, the U.S. government “has not set any deadline for the transition.”... ICANN accountability and insulation from undue government influence is critically important to the future vitality, stability, and openness of the Internet. It is far better to get this process done right than it is to get it done on time."--Congress Should Reject ICANN Transition Proposal Unless Significant Changes Are Made | The Daily Signal (written by Brett Schaefer and Paul Rosenzweig (CCWG-Accountability participants) December 22, 2015, emphasis added). UPDATE March 20: see also ICANN and the IANA Transition -- Proceed With Caution - Lawfare (Rosenzweig) and Stop Obama’s Internet Giveaway - WSJ (Gordon Crovitz)

"The [multistakeholder] process is an ugly process ... the fact that everyone is dissatisfied with this [IANA Transition & ICANN Accountability] proposal is a testament to its success ... there is no one that is happy with everything in this proposal."-- Jonathan Zuck  (CCWG-Accountability participant), President, ACT, The App Association, speaking March 17, 2016, at ITIF

"The devil is in the details"-- Victoria Sheckler, Sr. V.P and Deputy General Counsel, RIAA, speaking March 17, 2016, at ITIF

"... no consensus was reached about the proper role of the Governmental Advisory Committee (GAC) ... it is key that any amendments to the ICANN bylaws be carefully crafted ... This may be the most critical time of the process..."-- J. Scott Evans, Trademark Director and Associate General Counsel at Adobe, writing in CircleID.com (emphasis added).

Congress held an introductory hearing on the IANA stewardship transition proposal (IANA transition + ICANN Accountability WS1) on Thursday. Witnesses were a select group of participants from the ICANN community in support of the Proposal. Issues raised included questions about timing for implementation--can this all be accomplished prior to September 30, 2016? The witnesses all testified "yes" even though in reality the Cross Community Working Groups have missed every deadline in this whole process thus far.

Work Stream 2 (WS2) issues such as jurisdiction, human rights, ICANN staff accountability, accountability of AC/SOs to the global internet community, and transparency of ICANN (corporate, management, staff, Board of Directors), were barely touched upon. Ranking member, California Congresswoman Eshoo, asked about “vulnerabilities” of the proposal, Illinois member of Congress Shimkus asked about who the IANA functions operator would be if  the community selected a provider other than ICANN (or its PTI), and Chairman Walden asked about transparency regarding ICANN’s dealings with foreign governments. There were no clear answers given by the witnesses to those questions, part of the problem being that the Proposal is still incomplete, not yet implemented, with many details yet to come ("the devil is in the details"), untested, unproven, and as I pointed out last week, critical and fundamental accountability issues were postponed to a later WS2 stage, to be completed after  the U.S. has given up all oversight. As I wrote last week:

"... there is always the possibility that Congress--both Democrats and Republicans--will realize it is in the best interests of not only the American people, but also the global internet community, to insist upon the completion and implementation and a subsequent evaluation of both Work Stream 1 (WS1) and Work Stream 2 (WS2) accountability mechanisms, and whether they are actually effective and working, and then decide whether ending U.S. oversight is appropriate and in the best interests of both the American people and the global internet community."

Why would Congress be concerned about the global internet community? Because the U.S. government is ceding its role as steward of the global internet to ICANN: "No government owns or controls the root level of the Internet. Nor does ICANN or any other single entity .... In effect, ICANN serves as a trustee of the Internet’s unique names and numbers in service to all Internet users." --source: Weinstein et al v Iran and ICANN - U.S. Amicus Curiae Brief (pdf).

Although NTIA said in its March, 2014, announcement, it was transitioning its stewardship role to the global multistakeholder community, in reality, this whole process has been about NTIA transitioning its stewardship role to ICANN, the California corporation. Note that sole control of the Internet root zone will soon be ICANN's alone--ICANN is currently drafting a new contract for Verisign, the current Root Zone Maintainer (RZM), that will allow ICANN to make changes in the future, including taking over that additional role itself. That is an unprecedented concentration of power that NTIA is proposing to give to ICANN, the California corporation, in perpetuity. Why shouldn't the operators of the ccTLDs (ccNSO), and gTLDs (Registries Stakeholder Group), as well as the Root Name Server Operators (there are 12 including Verisign and ICANN), the IETF and RIRs, select the Root Zone Maintainer (RZM)? What happens, if and when, the "community" decides to change the IANA functions operator (IFO) from ICANN (or its PTI), to a new third party, only to discover that ICANN, in its new future role as Root Zone Maintainer, is now blocking or overwriting the work of the new IFO? Note also that ICANN has been aggressively expanding the number of its L Root Server sites, which according to this map now total 143 globally, far exceeding the number of sites of any other Root Server Operator which range from only 1 (ISI "B") to 109 (Verisign "A"+"J"). Whether or not it is ICANN's intention (now or in the future) to not only replace Verisign as Root Zone Maintainer, but also become sole operator of the Internet's root servers, once this transition is completed, ICANN will have that capability, thanks to the Obama administration, the bureaucrats at NTIA, a complacent and compliant Congress, and this flawed IANA Transition process.

Recall that this whole process started with the NTIA announcement in March, 2014, which only covered U.S. oversight of the IANA functions via the IANA contract. At that time, ICANN directors and officers were confident that a proposal could be delivered within a year, obviating any need to extend the IANA contract beyond September 30, 2015. In the summer of 2014, at the insistence of the "ICANN community," ICANN accountability was added as a separate, but equal, component of the whole IANA transition process. Today, ICANN accountability issues are the sticking points in the whole process. In comparison, the elimination of the U.S. government role in the IANA functions is a piece of cake, after all, the IANA functions used to be run by just one person, Jon Postel (see this pdf, p.5), and, as testified this week before Congress, the IANA functions are clerical in nature, not "rocket science."

One thing is now clear, Larry Strickling, and indeed, all of NTIA and the U.S. Department of Commerce, were, apparently, clueless about the extensive problems the "ICANN community" had with ICANN--the California corporation, its directors, officers, and staff--which is somewhat hard to understand since NTIA had threatened to remove ICANN as the IANA functions operator in 2012:

The New York Times March 18, 2012: "A boardroom dispute over ethics has broken out at the organization that maintains the Internet address system after its most important supporter, the United States government, reproached the group for governance standards said to fall short of “requirements requested by the global community.”..."

Part of the systemic and continuing problems at ICANN is the failure of both ICANN, and the "ICANN community," to understand their respective roles and responsibilities. ICANN is not an example of a multistakeholder-run organization and never has been. ICANN is an example of a California non-profit corporation controlled by a Board of Directors that have legal fiduciary duties including the duty to act in the global public interest, albeit in an environment where various designated stakeholder groups have policy-making roles, and some of those groups have a right to elect some of the corporation's directors. This leads to tensions, e.g., when special interests, such as the domain name industry, dominate and control the GNSO and advocate for policies that may not be in the global public interest, or disagree with other Board decisions. While bringing the Advisory Committees, particularly ALAC and GAC, into the "empowered community" may improve ICANN, the CCWG-Accountability, unfortunately, completely neglected issues concerning selection and qualification of ICANN Directors, other than removal.  This is tragic because so many of the problems at ICANN stem from a Board of Directors whose members appear to be passive, or lacking in an understanding of their important and vital legal role within ICANN's corporate governance structure, or their fiduciary duty to the global internet community. In particular, the failure of the ICANN Board of Directors to hold ICANN officers and staff accountable, has been striking. Just one example (of many): Why would any competent ICANN director allow an ICANN President to spend his, and ICANN staff time, and hundreds of thousands of dollars in ICANN funds, to establish and bankroll organization(s) outside the scope of ICANN's mission? For more see: ICANN President & CEO Fadi Chehade's Last Letter to Dilma Rousseff.

In any event, that is where we are now, more to come. See below the tentative timeline going forward (source: from the prepared testimony at this week's Congressional hearing):

• March 11 – June 11: NTIA assesses transition plan
• April 15: Draft revisions to ICANN bylaws released
• April 15 – May 15: Public Comment on ICANN bylaw revisions
• Mid – April: Root Zone testing begins
• April – May: Public review period on the RZM Contract (ICANN & Verisign)
• May 31: ICANN Board approves draft bylaw revisions
• June 15: NTIA submits plan to Congress for review
• June 16: Congressional review begins
• August – September New agreements are executed:
o Relationship agreements for the IANA including establishment of the PTI
o New RZM Contract
• October 1 Transition complete

Week ahead: Subject to future editorial changes, coming up on Domain Mondo:

• Fintech Startup, Investment App, Millennials
• Mobile Connectivity, Internet of Things
• Massive Revaluation: Tech Valuations
• Digital Currency, Blockchain Technology

Five most popular posts at DomainMondo.com this past week (# of pageviews Sun-Sat):

1. News Review [March 13]: ICANN, IANA Transition Plan, NTIA, and U.S. Congress
2. U.S. House Subcommittee, IANA Transition Hearing, March 17th Video
3. ICANN President & CEO Fadi Chehade's Last Letter to Dilma Rousseff
4. Brazil Insulted by ICANN President & CEO Fadi Chehade Farewell Letter
5. WIPO: Domain Cybersquatting Cases Up in 2015, Driven by New gTLDs

Final Note: Don't miss Domain Mondo's post yesterday: NTIA's Larry Strickling Et Al: Internet Governance in a Post-American World (video)

Have a great week!

-- John Poole, Editor, Domain Mondo

UPDATE March 29: News Review: France Blasts IANA Proposal, Berkman to Assess ICANN | DomainMondo.com (March 27, 2016)

Follow @DomainMondo

DISCLAIMER

The Guy Who Should Be Running ICANN, and CCWG-Accountability!

Every once in a while, if you listen closely, there is actually someone in an ICANN meeting who says something that makes sense, that is not just self-promoting hot air, posturing, selling, or lobbying. Such a rare event occurred Monday, October 19, 2015, during the CCWG-Accountability (Cross-Community Working Group on Enhancing ICANN Accountability) public engagement session during the ICANN 54 meeting in Dublin, Ireland:

"Bertrand de La Chapelle for the record.

"I want to continue briefly on what I said this morning, and I want in advance to apologize. I know it is difficult to come in at a late stage in the process. I understand there has been a lot of discussions, but I may be like a few other people here, somebody who knows about the internal functioning of ICANN but has not necessarily dedicated a lot of time following the work. So bear with me for just one second.

"My concern with the way it is presented today is that the conditions under which the recalling or the removal of one particular [ICANN] Board Member is envisaged in my view should be for failing to fulfill the responsibilities as a Board Member. That includes a nonexhaustive list--Conflict-of-interest issue, it can be a lack of fiduciary duty, it can be a behavior that has a particular--is an element of misbehavior.

"I do not think that not following whatever position an SO [Supporting Organization] may have on one topic is a misbehavior for an ICANN Board Member. This is not what I understand is the function of the [ICANN] Board.

"We collectively as a group and as a whole community create a body that is a collegial body, and I am concerned about the notion that somebody who has been elected by a particular constituency is entirely and exclusively representing the positions of this constituency. In a certain way, and I was making the comparison earlier today in a private conversation, this is one of the problems that we're witnessing in the European Union where governments are considering that their commissioner is there to represent their community. This is the European Union at the moment and I think this is a potential danger for ICANN.

"I think the Board Members should become extremely independent when they are designated and held accountable for that's misbehavior as a board member and not as the representative only of the community.

"I think if there is a list of explicit causes, whether you name it "causes" or not, it's okay, but if it is a completely open-ended thing, it is replacing accountability by oversight. And I do not think the community is above the Board. The Board is responsible to the community. That is different.

"And the final point is there are actually three elements that are slightly distinct and confused here. One is the responsibility of a Board Member towards the Community it comes from. The second is the responsibility of a Board Member to the organization. and the Third, which is always conflated with the second, and I think it's wrong, is the responsibility of the Board Member to the global public interest.

"There are situations where the duty of a board member, in my view, and I agree that not everybody may share that, the duty of a board member is to think about the global public interest first, the interest of the community -- of the corporation second, and the fulfillment of the coordination with its originating constituency [third]. but it [the global public interest] is a higher task, and it's a higher calling than just carrying whatever position their community may have at one point."

>>Thomas Rickert: thanks, Bertrand.

[applause ] (emphasis and link added)

@bdelachapelle - Diplomat, entrepreneur and multi-stakeholder activist. Director, Internet & Jurisdiction Project. Former Director on the Board of ICANN.


Follow @DomainMondo

DISCLAIMER

ICANN 54 full schedule links, info, and twitter feeds here
See also:  ICANN 54, Dublin, Wednesday, Livestreams, LIVE and Replay Videos

ICANN Exists for Itself and Insiders, to Exploit Domain Name Registrants

(Note: This is a follow-on to yesterday's ICANN FY15 Budget, New gTLD Domain Names #FAIL)

The first thing one should know and understand about ICANN is that ICANN is lacking in integrity--ICANN even lies about itself--

Resources - ICANN: ICANN "is a not-for-profit partnership of people from all over the world" -- this statement about ICANN on ICANN's website is FALSE. ICANN is not a partnership. ICANN is a California non-profit corporation with no membership, no partners, no stockholders, nothing, other than a Board of Directors which owes its fiduciary duties to the corporation, not  to a "partnership of people from all over the world." There is no legal "ownership" or "membership" or "governance" or "oversight" of ICANN by any "global internet community," or "multistakeholders," or any other concoction of the phrase "not-for-profit partnership of people from all over the world." 

ICANN, the California non-profit corporation, was formed at the instance of the U.S. government, to essentially be responsible for three things:

a) the technical coordination necessary for operation of the internet--the IANA functions--which are executed by Verisign (on a no-fee contract), the global technical community (people who do not work for ICANN), and a small staff of not more than 10 people employed by ICANN who perform mostly "clerk" functions;

b) policy-making regarding the domain name system (DNS); and

c) governance of domain name registry operators, registrars, and registrants.

At a typical ICANN meeting, you will find (besides ICANN staff, officers, and directors) people who largely fall into one of the following categories: a) the technical (IANA functions) community; b) the domain name industry--which dominates and has largely captured ICANN--registry operators, registrars, service providers, and their attorneys, lobbyists, et al, many of whom are trying "to game the system" for their own profit-making ends so they can exploit domain name registrants, financially and otherwise; and small contingents of c) government representatives; d) members of civil society/academia; and e) business and trademark "stakeholders."

ICANN's failure to have, within its organizational structure, equal and identifiable representation for the interests of domain name registrants has been disastrous--just look at the failure of ICANN to govern the outrageous conduct of new gTLD registry operators enabled by ICANN in its new registry and registrar agreements--see, e.g., For Domain Name Registrants, ICANN Is Useless and ICANN Fails to Prohibit Warehousing OR Speculation in Domain Names by new gTLD Registry Operators and Registrars and ICANN, New gTLD Domain Name Renewal Fees, Price Gouging. The whole organizational structure of ICANN, and its registrar and registry agreements, enable, intentionally or not, the exploitation (financially and otherwise) of domain name registrants by, primarily, the domain name industry, and secondarily, by ICANN itself as a recipient of fees collected from the registrants, directly and indirectly, by registrars and registry operators ("follow the money"). Furthermore, ICANN has failed to prevent the loss of domain names by UDRP abuses, or domain name thefts, or provide swift remedies for recovery of stolen domains, which ICANN could very easily do if it really cared about domain name registrants.

Protection of the public interest and domain name registrants from abusive ICANN practices and policies and registry and registrar malfeasance, to some degree, used to be provided by way of US government oversight, which unfortunately, has pretty much been AWOL in recent years, although as recently as two years ago, the US government essentially found ICANN to be unfit:

"The Commerce Department said it had canceled a request for proposals to run the so-called Internet Assigned Numbers Authority [IANA] because none of the bids [including ICANN's] met its requirements: “the need for structural separation of policy-making from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local country laws and a series of consultation and reporting requirements to increase transparency and accountability to the international community.” (emphasis added; source: NYTimes.com)

Right now, ICANN presumably has benefit of a "government contractor" immunity because it operates via a contract granted it by the US government. Once that contract is gone (September 2015?), will domain name registrants be able to resort to class actions and other litigation under U.S. federal and California state laws, against ICANN and its "contractors"--the registry operators and registrars? If so, besides being a windfall for class action law firms and the U.S.plaintiffs' bar, it may be a way to give domain name registrants some protection and remedies now lacking. Recommended reading: ICANN and Antitrust by A. Michael Froomkin and Mark A. Lemley (pdf).

Final note: It does not appear that any oversight of ICANN nor other effective means of redress will emerge from the current "ICANN-convened-and-controlled" IANA Transition or Enhancing ICANN Accountability processes, as a means for domain name registrants to seek effective redress for wrongful actions or omissions of ICANN or its registry operators and registrars.


Follow @DomainMondo