Last week, the National Telecommunications and Information Administration (NTIA), a division of the Department of Commerce, approved the “Transition” plan by which ICANN will free itself of oversight of the United States Government. Although it has been referred to generally as the “IANA Transition,” and couched in terms of the handover of certain technical functions, the plan also does away with the “Affirmation of Commitments” between the United States Government and ICANN. The AOC is the document that provided ICANN with its policy making legitimacy and provided for certain safeguards against abuse. Safeguards are important whenever dealing with a monopoly, like ICANN, which is the only body that determines what new domain name registries are formed and which domain name registries get to stay in good standing. It also sets many of the policies for who gets to register and keep domain names within those registries. While some of the components of the AOC have made their way into various post-transition documents, the United States Government will no longer be available to lend its legitimacy to ICANN’s policy decisions. ICANN will be truly “on its own.”
The current IANA contract between Commerce and ICANN expires at the end of September of this year. Curiously, NTIA, in its report which can be found here, seems to indicate that the reason it can choose not to renew the contract was that it didn’t have “statutory or legal” obligation to enter into the contract in the first place, merely the will of the President. It appears that unless a statutory or legal obligation to renew the contract appears before the current contract’s expiration, it is likely that the NTIA will allow it to lapse and ICANN will be free of United States Government oversight. There are currently some efforts in Congress to put conditions on the transition, including a bill sponsored by U.S. Sen. Ted Cruz (R-Texas) and Rep. Sean Duffy (R-Wis.). However, it is not clear, whether or not these efforts will gain any traction in an election year.
Why should you care?
If your business is dependent on a domain name to deliver your email or as a home for your website through which you advertise or deliver your goods and services, you have a stake in who runs the technical functions of the Internet and who gets to decide whether or not you get to keep your domain name.
What should you care about most in this Transition plan?
- The plan enhances the role of governments who participate in ICANN through the Government Advisory Committee (GAC). The GAC can now issue “consensus advice” that the ICANN Board is obligated to take unless the Board rejects it by a 60% vote. There are no guardrails on the timing of the advice or the issues upon which the GAC can opine. If the GAC decides to advise ICANN to do something that harms your business, and the ICANN Board does not have the political strength of will to rejected it, you are out of luck. Since ICANN is a monopoly, you do not have another provider to whom to turn to purchase services.
- Expect challenges to ICANN’s authority to make policy. ICANN can no longer rely on the United States Government’s legitimacy as a backstop to its policy making process. When challenged by a party who is harmed by ICANN policy, all ICANN will be able to refer to is that its legitimacy comes from not having a contract with the United States Government—but that, of course, describes the status of every other person and entity on the planet. ICANN will likely end up in the fight of its life to explain why, absent its contractual connection the United States Government, it should be allowed to choose the winners and the losers in the domain name marketplace.
- Keep an eye on the ICANN Board. Importantly, when the ICANN Board adopted the accountability reforms that came out of the transition planning process, it made those changes contingent on the expiration of the IANA contract. If the ICANN Board really believed that the accountability reforms were needed and beneficial, why wait to implement them (other than to have leverage to ensure that the transition occurs)? If fundamentally the ICANN Board believes that its past behavior, however criticized from time to time, was perfectly acceptable, what motivation would they have not to resist implementation of the accountability enhancements when the rubber hits the road post-transition? The United States Government will no longer be in the position to insist that they do.