IANA Transition: Suggestions for Process Design

Introduction:

On 14 March 2014, the NTIA of the US Government announced its intention to transition key internet domain name functions to the global multistakeholder community. These key internet domain name functions comprise functions executed by Internet Assigned Numbers Authority (IANA), which is currently contracted to ICANN by the US government. The US Government delineated that the IANA transition proposal must have broad community support and should address the following four principles:

1. Support and enhance the multistakeholder model;
2. Maintain the security, stability, and resiliency of the Internet DNS;
3. Meet the needs and expectation of the global customers and partners of the IANA services; and
4. Maintain the openness of the Internet.

Additionally, the US Government asked ICANN to convene a multistakeholder process to develop the transition plan for IANA. In April 2014, ICANN issued a Scoping Document for this process which outlined the scope of the process, as well as, what ICANN thinks, should not be a part of the process. In the spirit of ensuring broad community consensus, ICANN issued a Call for Public Input on the Draft Proposal of the Principles, Mechanisms and Process to Develop a Proposal to Transition NTIA’s Stewardship of IANA Functions on 8 April 2014, upon which the Government of India made its submission.

ICANN is currently deliberating the process for the development of a proposal for transition of IANA functions from the US Government to the global multistakeholder community, a step which would have implications for internet users all over the world, including India. The outcome of this process will be a proposal for IANA transition. The Scoping Document and process for development of the proposal are extremely limited and exclusionary, hurried, and works in ways which could potentially further ICANN’s own interests instead of global public interests. Accordingly, the Government of India is recommended take a stand on the following key points concerning the suggested process.

Submissions by the Government of India thus far, have however, failed to comment on the process being initiated by ICANN to develop a proposal for IANA transition. While the actual outcome of the process in form of a proposal for transition is an important issue for deliberation, we hold that it is of immediate importance that the Government of India, along with all governments of the world, pay particular attention to the way ICANN is conducting the process itself to develop the IANA transition proposal. The scrutiny of this process is of immense significance in order to ensure that democratic and representative principles sought by the GoI in internet governance are being upheld within the process of developing the IANA transition proposal. How the governance of the IANA functions will be structured will be an outcome of this process. Therefore if one expects a democratic, representative and transparent governance of IANA functions as the outcome, it is absolutely essential to ensure that the process itself is democratic, representative and transparent.

Issues and Recommendations:

Ensuring adequate representation and democracy of all stakeholders in the process for developing the proposal for IANA transition is essential to ensuring representative and democratic outcomes. Accordingly, one must take note of the following issues and recommendations concerning the process.

Open, inclusive deliberation by global stakeholders must define the Scope of the Process for developing proposal for IANA transition:

The current Scoping Document was issued by ICANN to outline the scope of the process by which the proposal for IANA transition would be deliberated. The Scoping Document was framed unilaterally by ICANN, without involvement of the global stakeholder community, and excluding all governments of the world including USA. Although this concern was voiced by a number of submissions to the Public Call by ICANN on the Draft Proposal, such concern was not reflected in ICANN’s Revised Proposal of 6 June 2014. It merely states that the Scoping Document outlines the “focus of this process.” Such a statement is not enough because the focus as well as the scope of the process needs to be decided in a democratic, unrepresentative and transparent manner by the global stakeholder community, including all governments.

This unilateral approach to outline which aspects of IANA transition should be allowed for discussion, and which aspects should not, itself defeats the multistakeholder principle which ICANN and the US government claim the process is based on. Additionally, global community consensus which the US Govt. hopes for the outcome of such process, cannot be conceivable when the scope of such process is decided in a unilateral and undemocratic manner. Accordingly, the current Scoping Document should be treated only as a draft, and should be made open to public comment and discussion by the global stakeholder community in order that the scope of the process reflects concerns of global stakeholders, and not just of the ICANN or the US Government.

Accountability of ICANN must be linked to IANA Transition within Scope of the Process:

ICANN Accountability must not run merely as a parallel process, since ICANN accountability has direct impact on IANA transition. The current Scoping Document states, “NTIA exercises no operational role in the performance of the IANA functions. Therefore, ICANN’s role as the operator of the IANA functions is not the focus of the transition: it is paramount to maintain the security, stability, and resiliency of the DNS, and uninterrupted service to the affected parties.” However this rationale to exclude ICANN’s role as operator of IANA from the scope of the process is not sound because NTIA does choose to appoint ICANN as the operator of IANA functions, thereby playing a vicarious operational role in the performance of IANA functions.

The explicit exclusion of ICANN’s role as operator of IANA functions from the scope of the process works to serve ICANN’s own interests by preventing discussions on those alternate models where ICANN does not play the operator role. Basically, this presumes that in absence of NTIA stewardship ICANN will control the IANA functions. Such presumption raises disturbing questions regarding ICANN’s accountability as the IANA functions operator. If discussions on ICANN’s role as operator of IANA functions is to be excluded from the process of developing the proposal for IANA transition, it also implies exclusion of discussions regarding ICANN’s accountability as operator of these functions.

Although ICANN announced a process to enhance its accountability on 6 May 2014, this was designed as a separate, parallel process and de-linked from the IANA transition process. As shown, ICANN’s accountability, its role as convenor of IANA transition process, and its role as current and/or potential future operator of IANA functions are intrinsically linked, and must not be discussed in separate, but parallel process. It is recommended that ICANN accountability in the absence of NTIA stewardship, and ICANN’s role as the operator of IANA functions must be included within the Scoping Document as part of the scope of the IANA transition process. This is to ensure that no kind of IANA transition is executed without ensuring ICANN’s accountability as and if as the operator of IANA functions so that democracy and transparency is brought to the governance of IANA functions.

Misuse or appearance of misuse of its convenor role by ICANN to influence outcome of the Process must not be allowed:

ICANN has been designated the convenor role by the US Govt. on basis of its unique position as the current IANA functions contractor and the global co-ordinator for the DNS. However it is this unique position itself which creates a potential for abuse of the process by ICANN. As the current contractor of IANA functions, ICANN has an interest in the outcome of the process being conducive to ICANN. In other words, ICANN prima facie is an interested party in the IANA transition process, which may tend to steer the process towards an outcome favourable to itself. ICANN has already been attempting to set the scope of the process to develop the proposal for IANA transition unilaterally, thus abusing its position as convenor. ICANN has also been trying to separate the discussions on IANA transition and its own accountability by running them as parallel processes, as well as attempting to prevent questions on ICANN’s role as operator of IANA functions by excluding it from the Scoping Document. Such instances provide a strong rationale for defining the limitations of the role of ICANN as convenor.

Although ICANN’s Revised Proposal of 6 June 2014 stating that ICANN will have a neutral role, and the Secretariat will be independent of ICANN staff is welcome, additional safeguards need to be put in place to avoid conflicts of interest or appearance of conflicts of interest. The Revised Proposal itself was unilaterally issued, whereby ICANN incorporated some of the comments made on its Proposed Draft, in the revised Draft, but excluded some others without providing rationale for the same. For instance, comments regarding inclusion of ICANN’s role as the operator of IANA functions within the Scoping Document, were ignored by ICANN in its Revised Proposal.

It is accordingly suggested that ICANN should limit its role to merely facilitating discussions and not extend it to reviewing or commenting on emerging proposals from the process. ICANN should further not compile comments on drafts to create a revised draft at any stage of the process. Additionally, ICANN staff must not be allowed to be a part of any group or committee which facilitates or co-ordinates the discussion regarding IANA transition.

Components of Diversity Principle should be clearly enunciated in the Draft Proposal:

The Diversity Principle was included by ICANN in the Revised Proposal of 6 June 2014 subsequent to submissions by various stakeholders who raised concerns regarding developing world participation, representation and lack of multilingualism in the process. This is laudable. However, past experience with ICANN processes has shown that many representatives from developing countries as well as from stakeholder communities outside of the ICANN community are unable to productively involve themselves in such processes because of lack of multilingualism or unfamiliarity with its way of functioning. This often results in undemocratic, unrepresentative and non-transparent decision-making in such processes.

In such a scenario, merely mentioning diversity as a principle is not adequate to ensure abundant participation by developing countries and non-ICANN community stakeholders in the process. Concrete mechanisms need to be devised to include adequate and fair geographical, gender, multilingual and developing countries’ participation and representation on all levels so that the process is not relegated merely to domination by North American or European entities. Accordingly, all the discussions in the process should be translated into multiple native languages of participants in situ, so that everyone participating in the process can understand what is going on. Adequate time must be given for the discussion issues to be translated and circulated widely amongst all stakeholders of the world, before a decision is taken or a proposal is framed. To concretise its diversity principle, ICANN should also set aside funds and develop a programme with community support for capacity building for stakeholders in developing nations to ensure their fruitful involvement in the process.

The Co-ordination Group must be made representative of the global multistakeholder community:

Currently, the Co-ordination Group includes representatives from ALAC, ASO, ccNSO, GNSO, gTLD registries, GAC, ICC/BASIS, IAB, IETF, ISOC, NRO, RSSAC and SSAC. Most of these representatives belong to the ICANN community, and is not representative of the global multistakeholder community including governments. This is not representative of even a multistakeholder model which the US Govt. has announced for the transition; nor in the multistakeholder participation spirit of NETmundial.

It is recommended that the Co-ordination Group then must be made democratic and representative to include larger global stakeholder community, including Governments, Civil Society, and Academia, with suitably diverse representation across geography, gender and developing nations. Adequate number of seats on the Committee must be granted to each stakeholder so that they can each co-ordinate discussions within their own communities and ensure wider and more inclusive participation.

Framing of the Proposal must allow adequate time:

All stakeholder communities must be permitted adequate time to discuss and develop consensus. Different stakeholder communities have different processes of engagement within their communities, and may take longer to reach a consensus than others. If democracy and inclusiveness are to be respected, then each stakeholder must be allowed enough time to reach a consensus within its own community, unlike the short time given to comment on the Draft Proposal. The process must not be rushed to benefit a few.

Smarika Kumar is a graduate of the National Law Institute University, Bhopal, and a member of the Alternative Law Forum, a collective of lawyers aiming to integrate alternative lawyering with critical research, alternative dispute resolution, pedagogic interventions and sustained legal interventions in social issues. Her areas of interest include interdisciplinary research on the Internet, issues affecting indigenous peoples, eminent domain, traditional knowledge and pedagogy.