Revised DOTCOM Act Highlights Importance of Community Empowerment

Written by Matthew Shears

Last week, the Communications and Technology Subcommittee of the House Energy and Commerce Committee amended the DOTCOM Act, a bill which, in earlier drafts, would have halted the IANA functions transition process for up to a year pending US Congressional approval.  CDT and other human rights organizations were critical of those earlier drafts, as they represented unilateral governmental interference in the multistakeholder process and were squarely at odds with the US government’s longstanding commitment to the transition. The new bill reflects a much deeper understanding of, and confidence in, the significant amount of work that the global multistakeholder community has undertaken in planning both for the transition of IANA functions oversight and for the increased accountability of ICANN.

As those who have been following this transition know, there are two parallel streams of work that are crucial to completing the transition that NTIA called for in March of 2014.  The first, Community Working Group (CWG) Stewardship, is developing a proposal that will enable NTIA to transition out of its role in the DNS.  The second, Cross Community Working Group (CCWG) Accountability, is identifying necessary reforms to ICANN’s bylaws and processes to enhance the organization’s accountability to the global community post-transition.

One of the most important points of consensus that has emerged is that significant accountability reforms at ICANN must take place before the IANA transition can occur.

One of the most important points of consensus that has emerged is that significant accountability reforms at ICANN must take place before the IANA transition can occur.  As CDT stated in its testimony to the House Energy & Commerce committee last month, “It is essential to ensure that ICANN is accountable to the broader community and that it provides neutral and transparent oversight to the IANA functions. This will only be possible with a community that is more empowered than it is today. Thus, the ultimate oversight of the IANA functions, under the current proposal, is fully dependent upon the new community powers that are a part of the proposal from the working group on accountability. It is absolutely essential that the proposed accountability enhancements are embraced – and committed to – by ICANN and its board, both at the time of the transition and beyond.”

NTIA Assistant Secretary of Commerce for Communications and Information Lawrence Strickling has made it very clear that “the two work streams on the IANA transition and enhanced accountability are directly linked and … both issues must be addressed before any transition takes place.”

Congress is also taking these dependencies very seriously.  The amended DOTCOM Act would call for the NTIA to certify – as a part of a proposed GAO report on the transition – that “the required changes to ICANN’s by-laws contained in the final report of ICANN’s Cross Community Working Group on Enhancing ICANN Accountability and the changes to ICANN’s bylaws required by ICANN’s IANA have been implemented.”

Digging deeper into the IANA transition model

As the community has worked to develop a transition proposal, we have seen an ever increasing closeness between ICANN and the IANA functions. The CWG Stewardship’s IANA transition model has evolved over the past 6 months from an external oversight model, which would have created an entity called Contract Co designed to replicate the role of NTIA wholly outside of ICANN (and which posed the challenge of creating – and developing accountability mechanisms for entirely new and separate entities), to the subsidiary-of-ICANN model the community has settled on in the final draft version of the CWG Stewardship’s proposal.

In the proposed model, an affiliate (subsidiary) of ICANN – the Post-transition IANA (PTI) – will act as the operator of the IANA functions.  ICANN will contract with PTI to provide the IANA functions and PTI will implement the functions using the existing IANA functions team.  Effectively this makes ICANN the steward, contracting entity, and the controlling party in the PTI.

This construct poses some obvious issues.  For the same organisation to be the IANA functions steward, contracting party, and operator, as well as the policy-making entity for the domain names community, is an excessive concentration of responsibilities, and therefore power, at the core of the DNS, with few or no outside checks and balances. (NTIA, as the current contracting party, provides the stewardship and therefore a significant check on ICANN and its performance of the IANA functions.)

Fortunately, the CWG Stewardship recognises the critical importance of the CCWG Accountability’s work to the transition proposal’s success.  The final draft proposal states clearly in paragraph 106 that “the CWG Stewardship proposal is significantly dependent and expressly conditioned on the implementation of ICANN-level accountability mechanisms by the CCWG Accountability…” These mechanisms are summarized below:

  • The ability for the community to approve or reject the ICANN budget;
  • The ability of the community to appoint and remove members of the ICANN Board and to recall the entire ICANN Board;
  • The creation of an IANA Function Review (IFR) and a Customer Standing Committee (CSC), two key elements of the proposed transition model, as well as a mechanism that could result in the IANA Functions Operator being changed or separated from ICANN;
  • Access to an appeals mechanism, such as an Independent Review Panel, for issues related to the IANA functions; and
  • The creation of fundamental bylaws for each of the above (a fundamental bylaw is one that requires community approval and for which there is a higher approval threshold for changes than a typical bylaw).

These mechanisms must be seen as a package, as the CWG recognizes.  The transition proposal states that “If any element of these ICANN level accountability mechanisms is not implemented as contemplated by the CWG-Stewardship proposal, this CWG-Stewardship proposal will require revision.”

The two processes, the IANA transition on the one hand and enhancements to ICANN’s accountability on the other, have over the past year become increasingly intertwined, so much so that the success of the first could well depend on the full implementation of the second.  If the proposed accountability enhancements and community empowerment mechanisms are watered down, the future of the IANA transition could be jeopardised.  They are key elements to ensuring the neutrality, transparency, and effectiveness of the IANA functions, and therefore the stability, security. and resiliency of the DNS. Their implementation is essential.

 

 

 

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