Answering some of your questions on the stewardship transition
By delivering the IANA stewardship transition proposal to the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) in March, the global Internet community executed the largest multistakeholder process ever undertaken in Internet governance.
The transition proposal achieved the broad support thousands of Internet stakeholders by reinforcing the current multistakeholder system and making ICANN more accountable to Internet users around the world. The proposal also garnered support from global representatives of industry, the technical community, civil society groups, academics, governments and end users.
The timely completion of the transition will help preserve the continued openness of the Internet by entrusting its oversight with those who have made the greatest investments in its extraordinary success so far – the volunteer-based multistakeholder community.
Still, some questions remain about the nature of the IANA functions, ICANN, and the likely impacts of the transition and we wanted to answer them for you in one place.
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. The freedom of any person to express his or herself on the globally interoperable Internet is in fact enhanced by the transition moving forward. ICANN is not, has not been, and by its Bylaws cannot become, a place for regulation of content.
Ensuring that the Internet remains open, interoperable and stable in the long-term helps protect Internet freedom. Some believe that extending the contract may actually lead to the loss of Internet freedom because it could fuel efforts to move Internet governance decisions to the United Nations (U.N.). Former Homeland Security Secretary Michael Chertoff and retired Vice Chairman of the Joint Chiefs of Staff James Cartwright stated that, "rejecting or even delaying the transition would be a gift to those governments threatened by a free and open Internet."
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. That is true under the current contract with the U.S. Government and will remain true without the contract with the U.S. Government. The transition will not empower or prohibit sovereign states from censoring speech.
Many leading civil society and advocacy groups [PDF, 106 KB] actually argue that the transition will enhance free speech on the Internet. Human Rights Watch, Access Now, Article19, Open Technology Institute and Public Knowledge, support the transition because "executing upon the IANA transition is the best way to ensure the continued functionality of the global internet and to protect the free flow of information so essential to human rights protection."
Does the contract between the U.S. Government and ICANN protect First Amendment rights on the Internet?
No. The IANA functions contract does not provide ICANN or the U.S. Government any authority or technical ability to regulate or protect First Amendment rights on the Internet. The App Association stated [PDF, 72 KB] that maintaining the IANA functions contract “won’t safeguard freedom of expression on the Internet because neither the DNS nor the U.S. Government’s role provide any authority over content on the Internet.” Sovereign states regulate content on the Internet within their borders – that is true now and will remain true after the transition. The regulation of content on the Internet has nothing to do with ICANN or the IANA functions.
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. On 12 September 2016, the U.S. Government Accountability Office (GAO) issued a report stating it is unlikely that either the authoritative root zone file or the Domain Name System is U.S. Government property. NTIA issued a statement in response to the GAO report. This answers questions by some that the IANA stewardship transition will illegally transfer government property, which requires congressional approval.
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 of Commerce, the authoritative root zone file is not U.S. Government property.
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.
NTIA, along with other U.S. Government agencies and a panel of corporate governance experts, conducted a thorough review of the transition proposal. NTIA confirmed that the proposal mitigated the risk of a government or third-party capture of ICANN after the transition. Columbia University's John Coffee also concluded that, "ICANN has been given so many checks and balances that it is difficult to imagine a hostile takeover," after the transition.
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. NTIA also would not allow the transition to occur if ICANN were to replace the role of the U.S. Government with another government or inter-governmental organization.
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.
In a March testimony before Congress [PDF, 103 KB], Intel Corporation stated that the transition proposal "strikes the right balance of including governments in a true multistakeholder community, while not giving them increased influence over ICANN's decisions," after the transition.
What will be the role of the U.S. Government in ICANN after the transition?
After the transition, the U.S. Government will continue to participate as an active member of the Governmental Advisory Committee. All governments who participate in ICANN – including the U.S. Government – are a part of this advisory committee.
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." In addition, the Centre for International Governance Innovation added to this sentiment by expressing that "[A delay will] increase distrust, and will likely encourage some governments to pursue their own national or even regional Internets."
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.
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.
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.
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.
What accountability mechanisms will be put in place after the transition to ensure ICANN remains accountable to the global Internet community?
The community developed 12 consensus recommendations [PDF, 1.2 MB] that preserve the existing multistakeholder system while enhancing the community’s ability to hold ICANN’s Board of Directors accountable to the Internet community and ICANN’s Bylaws. The Information Technology Industry Council stated that the enhanced accountability mechanisms “lay the foundation for creating a more equitable balance in the governance of ICANN itself.”
The new accountability mechanisms include strengthening ICANN’s reconsideration and independent review processes. The improvements will also empower the global Internet community to have direct recourse if they disagree with decisions made by ICANN the organization and Board. For example, the global Internet community will have the power to reject ICANN’s proposed budgets or strategic plans, remove individual Board directors, or even ‘spill’ the entire Board – all enforceable under California law. The U.S. Chamber of Commerce issued support for these new mechanisms because they “achieve binding, legally enforceable accountability that will benefit the multistakeholder community.”
The ICANN Bylaws and Articles of Incorporation, formed under California law, provide the foundation for ICANN’s core mission, commitments, values, and accountability mechanisms. Could these important elements of the ICANN Bylaws be changed after the transition?
Under California law, the ICANN Board can only change the ICANN Bylaws and Articles of Incorporation if there is support from the global Internet community. After the transition, ICANN’s key responsibilities like its mission, commitments and core values, and the enhanced accountability mechanisms can only be modified after: (1) a public consultation process; (2) support of 75% of the Board; and (3) approval by ICANN’s multistakeholder community. This means that core elements, or “Fundamental Bylaws,” cannot be changed without a high-threshold of approval from the community, ICANN Board, and broader Internet stakeholders.
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.