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Policy Backgrounder: Ensuring a Free Internet – ICANN Transition Moving in the Wrong Direction

FOF Policy Backgrounder

by Jared Smith

Overview

When the United States Government announced its intent to forfeit its historical role of providing oversight for the Internet’s Domain Name System (DNS), it did so prematurely – before ensuring that the Internet Corporation for Assigned Names and Numbers (ICANN) would be independent and strong with a clearly limited role. The vague conditions of the transition set forth by the National Telecommunications and Information Administration (NTIA) allow room for the process to be potentially subverted by unfriendly governments or intergovernmental organizations with ulterior motives – or neutered by ICANN itself. As the process moves forward, the United States must require that ICANN be able to ensure its ability to maintain the security, stability, resiliency, and openness of the Internet Domain Name System, while meeting the needs and expectations of global customers and partners of the Internet Assigned Numbers Authority (IANA) and supporting a multi-stakeholder model of governance.  

Background

Since the establishment of ICANN’s contract with the NTIA to manage the backend functions of the Internet in 1998, the United States Federal Government has repeatedly expressed the desire to privatize oversight of the DNS process. However, the privatization of ICANN’s role has routinely been delayed due to ICANN’s inability to perform its proper functions without the guidance of the NTIA.

Since the late 1990s, Presidential Administrations and Congress have supported the NTIA in its goal of ensuring  the Internet’s core functions are controlled by the broad Internet community; the importance of these functions is too great to risk foreign government interference. As the Internet has matured, it has grown in scope and importance. Concerns have been raised regarding the power vacuum the United States’ absence would create. Governments with unfriendly views towards an open Internet – including Russia, China, and even some democracies – have made their intentions and desires to limit critical speech well-known. Were one of these nations able to exert influence over ICANN, they could potentially limit or favor specific domain names based on political affiliations or organization. If a government were successful in limiting free speech on the Internet, it could serve as precedent for limitation of speech and discrimination against minorities in other venues or through mediums.

Though its oversight contract could potentially run through 2019, the NTIA suddenly announced its intention to let its contract with ICANN expire in September 2015 without a proper oversight model in place for the future. Instead, the NTIA set out vague standards to guide the transition. In light of the unclear transition standards, opponents of the transition have expressed concerns that the NTIA’s recommended safeguards will be easily circumvented and ICANN’s core functions hijacked by government-sponsored entities.

From the Heritage Foundation to the Information Technology and Innovation Foundation (ITIF), many organizations are echoing these concerns. Under current circumstances, there are many who doubt ICANN’s ability to gain the trust of the international community as it takes the reins of the Internet. ICANN has sought to alleviate these concerns by announcing initiatives to increase accountability and transparency, but these mechanisms should include the ability for external audit and arbitration of issues. There also need to be

structural reforms. Most importantly, the new process should take a bottom-up approach – one led by the stakeholders of the global Internet community, who need to be the ultimate guardians of the DNS – and not be under the sole direction of ICANN.

If not the United States, Who Will Lead?

Though the United States has traditionally exercised oversight over ICANN, other nations have expressed concern over its leadership role in the process. Without the United States, nations who have consistently sought to limit and censor the Internet are vying for an increased role in the administration of ICANN and the DNS – raising concerns over the future of Internet freedom. The United States should not end its leadership role before limitations are in place to ensure ICANN’s ability to manage the DNS process in an open, transparent, accountable way, independent from the influence of states with negative attitudes regarding free speech. The vague standards set forth by the NTIA should be refined into specific, clear guidelines setting forth the structural changes to ICANN that will be needed to meet these objectives.

For the time being, it is necessary that the United States provide oversight and support to the ICANN transition. The United States maintains a strong interest in ensuring the stability and security of the Internet – a fragmented or limited Internet could affect vital functions of the economy, as well as its popular mediums for expressing political thoughts. To ensure the continuing stability and security of the Internet, while protecting American interests, Congress and the Obama Administration should:

Ensure the Accountability of ICANN in the DNS Process. So far, ICANN has attempted to circumvent serious efforts to establish a true, community-led model of operation. ICANN’s suggested measures perpetuate a system of weak accountability and transparency mechanisms, placing ICANN staff members and ICANN-selected experts in key positions within the accountability review group. ICANN is attempting to allow its staff to craft their own accountability and transparency policies by designing its own transition process. ICANN stakeholders recognized that the proposed transition process did not adhere to the standards of a true bottom-up, multi-stakeholder process and have unanimously objected.  A new process that will ensure true accountability and structural reforms must be developed, independent of ICANN staff.

Ensure the Independence of ICANN Against Government Control. The United States Government has openly and consistently opposed interference by governments in the DNS process, and the NTIA has repeatedly stated it would not condone a transition to a government-led or intergovernmental organization. However, ICANN recently proposed a bylaw change that would make it much easier to subject ICANN to policies suggested by foreign governments. The proposed change grants substantial governing authority to a committee led by a committee of foreign interests, whose recommendations can only be overridden by two-thirds of the ICANN board. More than ever, ICANN must strengthen its protections against governmental coercion. If ICANN’s ability to maintain its own independence is not clear by the anticipated transition deadline, Congress should mandate the NTIA exercise its right to renew its contract with ICANN for an additional two years. With the size, scale, and importance of an issue such as Internet freedom, American oversight should last as long as it takes to ensure its future.

Ensure the Free Nature of the Internet. The Internet is the ultimate platform for the expression of thought, international commerce, and many other functions; protecting the freedom of its users is paramount. However, many authoritarian governments see freedom of expression as a threat to their concentration of power. These regimes have a vested interest in maintaining a strong influence over platforms that provide methods of political expression and speech. While ICANN currently does not possess the capabilities to limit free speech directly, aspects of the DNS process could potentially be subverted by the manipulation of domain names. Specifically, governmental organizations can use the DNS to shut down or limit access to specific domains. To avoid any possible limitations of free speech, ICANN must work to incorporate freedom of expression protections into its bylaws and avoid content-based decisions in the administration of the DNS.