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No Guarantees on the ICANN Transition

Jonah Force Hill - 18th September 2014
No Guarantees on the ICANN Transition

Jonah Force Hill examines ongoing efforts to internationalize the internet.

In March 2014, the U.S. government announced that it would be relinquishing its oversight of the Internet Corporation for Assigned Names and Numbers (better known by its acronym, ICANN), the California-based nonprofit responsible for assigning Internet address names and IP numbers, one of the Internet’s central coordinating and governance functions. ICANN would be a fully independent body no longer tied to the U.S. government by 2015, the announcement stated.

Yet while critics of the U.S.-ICANN relationship may view the March declaration as a major and positive milestone in the internationalization of Internet governance, moving away from a system of U.S. dominance, they ought to withhold their celebration. The ICANN transition is anything but guaranteed, as American domestic politics may very well still render the intended withdrawal a nullity.

ICANN has for nearly 20 years maintained a contractual relationship with the U.S. Department of Commerce, as part of a holdover from the Internet’s beginnings as a U.S. Defense Department research project. This oversight has drawn increased international criticism in recent years, viewed by many as an unfair source of American hegemony over a now truly global Internet. The NSA revelations only exacerbated those concerns. The Obama Administration concluded, ultimately, that the U.S.-ICANN contract would have to go if the country hoped to remain a credible participant in the global Internet governance system.

The announcement of the transition, however, while supported internationally, was immediately met with sharp denunciations from the President’s Republican opposition at home. The Republican resistance may derive from domestic political conflicts as much as an informed concern about the operability of the Internet, but many lawmakers and pundits have cited their fears that repressive governments, or even the United Nations (to their minds a proxy for authoritarian governments), could gain greater influence over the Internet as a result of the withdrawal, despite assurances to the contrary from the Administration.

For many Republicans and similarly-minded Obama critics, the ICANN transition is yet another example of the President’s foreign policy capitulation to the demands of the international community. As former House of Representatives Speaker Newt Gingrich tweeted: “What is the global internet community that Obama wants to turn the Internet over to? This risks foreign dictatorships defining the Internet.”

Republicans in the House of Representatives have not limited their opposition to speeches and social media. They have sought legislative action to prevent the President from following through with the planned transition. Representative John Shimkus (R-IL) introduced a bill in April 2014, entitled the DOTCOM Act, that would, “…prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of the United States submits to Congress a report on the role of the NTIA with respect to such system.” The law would prohibit the Obama Administration from moving forward with the transition until Congress had received a report from the Government Accountability Office (also known as the Comptroller General) analyzing the implications of the transition plan.

In addition, Republicans have offered amendments to existing bills and spending authorizations to prevent the handover. Congressman Shimkus also introduced an amendment to the $601 billion National Defense Authorization Act, the legislative authorization for U.S. military expenditures, which similarly would prohibit the transition. Congressman Sean Duffy (R-WI) added an amendment to the Commerce Justice and Science Appropriations bill that would cut the Commerce Department’s funding significantly if the withdrawal went though.

These bills and amendments have all been removed or voted down as part of negotiations between the two houses of the legislature, but other critics have even questioned whether the Department of Commerce even has the legal authority to withdraw from the contract with ICANN at all. L. Gordon Crovitz of the Wall Street Journal, an especially vocal opponent of the move, has highlighted a study from the Office of the General Counsel at the Government Accountability Office, which suggests that an ICANN transition may require a transfer of U.S. government property, an authority that the Department of Commerce may not have at its disposal. No legal action has been taken but that may be coming.

The Obama Administration still looks determined to see through the transition—though perhaps at a later date than was originally announced. The U.S. tech community is strongly in favor of the transition, maintaining that the U.S. does not exert much influence over ICANN in any case, so modify the current status of American control if that modification will mollify the concerns of the international community and—not coincidentally—help them win back customers distressed by the Snowden revelations. For the time being, the process is moving forward as planned. ICANN has initiated two concurrent processes, one for developing a proposal for the transition for the registries of names, numbers, protocol parameters; a second whose remit is to propose how, after the transition, ICANN organizationally will be structured and how it will make decisions. ICANN will submit these proposals to the U.S. government for approval by year’s end.

Even so, the transition is by no means a foregone conclusion. Besides the Republican efforts at legislative obstruction and potential litigation, the Obama Administration itself has explicitly stated that it will not accept an ICANN proposal that replaces the existing U.S. oversight role with control devolving to other governments or to inter-governmental institutions (that is to say, the Administration will not hand over its ICANN authority to the United Nations). Rather, the new arrangement must be a ‘multistakeholder’ arrangement, the administration has asserted, a body comprised of governments, companies, academics, and civil society groups. If ICANN fails to develop a plan to create a structure consistent with these U.S. government requirements, the withdrawal could be put on hold indefinitely.

In short, the Obama Administration, the major American Internet companies, and most of the international participants engaged in this issue support – I would argue correctly support – the transition away from U.S. control. But the Obama Administration will not accept simply any plan ICANN designs. Moreover, there remains within the U.S. a powerful opposition against the transition under any circumstances. On balance, it seems more likely than not that the transition will occur, but like virtually all questions of American politics these days, the future remains murky.

 

Jonah Force Hill, MTS, MPP, is a technology and international affairs consultant and a Fellow of the Global Governance Futures (GGF 2025) program. He has served in the Office of the Cybersecurity Coordinator at the White House, as a Teaching Fellow in Cybersecurity at Harvard, and in the political affairs section of the U.S. Embassy in New Delhi. The views presented are his own.