Centre for Internet and Society

IANA Transition: Suggestions for Process Design

Smarika Kumar — 2014-06-22T09:15:21Z

With analysis of community-input and ICANN processes, Smarika Kumar offers concrete suggestions for process design. She urges the Indian government to take a stronger position in matters of IANA transition.

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:

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

For more details visit https://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design

CIS Policy Brief: IANA Transition Fundamentals & Suggestions for Process Design

geetha — 2014-07-08T08:39:41Z

In March 2014, the US government announced that it would transfer oversight of IANA functions to an as-yet-indeterminate global multi-stakeholder body. This policy brief, written by Smarika Kumar and Geetha Hariharan, explains the process concisely.

Short Introduction:

In March 2014, the National Telecommunications and Information Administration (NTIA) announced its intention to transition key Internet domain name functions to the global multi-stakeholder community. Currently, the NTIA oversees coordination and implementation of IANA functions through contractual arrangements with ICANN and Verisign, Inc.

The NTIA will not accept a government-led or inter-governmental organization to steward IANA functions. It requires the IANA transition proposal to have broad community support, and to be in line with the following principles: (1) support and enhance the multi-stakeholder model; (2) maintain the security, stability, and resiliency of the Internet DNS; (3) meet the needs and expectation of the global customers & partners of IANA services; (4) maintain the openness of the Internet.

ICANN was charged with developing a proposal for IANA transition. It initiated a call for public input in April 2014. Lamentably, the scoping document for the transition did not include questions of ICANN’s own accountability and interests in IANA stewardship, including whether it should continue to coordinate the IANA functions. Public Input received in May 2014 revolved around the composition of a Coordination Group, which would oversee IANA transition. Now, ICANN will hold an open session on June 26, 2014 at ICANN-50 to gather community feedback on issues relating to IANA transition, including composition of the Coordination Group.

CIS Policy Brief:

CIS' Brief on IANA Transition Fundamentals explains the process further, and throws light on the Indian government's views. To read the brief, please go here.

Suggestions for Process Design

As convenor of the IANA stewardship transition, ICANN has sought public comments on issues relating to the transition process. We suggest certain principles for open, inclusive and transparent process-design:

Short Introduction:

In March 2014, the US government through National Telecommunications and Information Administration (NTIA) announced its intention to transition key Internet domain name functions (IANA) to the global multi-stakeholder community. The NTIA announcement states that it will not accept a government-led or intergovernmental organization solution to replace its own oversight of IANA functions. The Internet Corporation for Assigned Names and Numbers (ICANN) was charged with developing a Proposal for the transition.

At ICANN-49 in Singapore (March 2014), ICANN rapidly gathered inputs from its community to develop a draft proposal for IANA transition. It then issued a call for public input on the Draft Proposal in April 2014. Some responses were incorporated to create a Revised Proposal, published on June 6, 2014.

Responses had called for transparent composition of an IANA transition Coordination Group, a group comprising representatives of ICANN’s Advisory Committees and Supporting Organizations, as well as Internet governance organizations such as the IAB, IETF and ISOC. Also, ICANN was asked to have a neutral, facilitative role in IANA transition. This is because, as the current IANA functions operator, it has a vested interest in the transition. Tellingly, ICANN’s scoping document for IANA transition did not include questions of its own role as IANA functions operator.

ICANN is currently deliberating the process to develop a Proposal for IANA transition. At ICANN-50, ICANN will hold a governmental high-level meeting and a public discussion on IANA transition, where comments and concerns can be voiced. In addition, discussion in other Internet governance fora is encouraged.

CIS Policy Brief:

CIS' Brief on IANA Transition Principles explains our recommendations for transition process-design. To read the brief, please go here.

For more details visit https://cis-india.org/internet-governance/blog/cis-policy-brief-iana-transition-fundamentals-and-suggestions-for-process-design

Understanding IANA Stewardship Transition

Smarika Kumar — 2014-06-22T03:23:37Z

Smarika Kumar describes the process of the IANA stewardship transition, and enumerates what the NTIA announcement does and does not do.

NTIA Announcement and ICANN-convened Processes:

On 14 March 2014, the National Telecommunications and Information Administration (NTIA) of the US Government announced “its intent to transition key Internet domain name functions to the global multistakeholder community”. These key Internet domain name functions refer to the Internet Assigned Numbers Authority (IANA) functions. For this purpose, the NTIA asked the Internet Corporation for Assigned Names and Numbers (ICANN) to “convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet’s domain name system (DNS)”. This was welcome news for the global Internet community, which has been criticising unilateral US Government oversight of Critical Internet Resources for many years now. NTIA further announced that IANA transition proposal must have broad community support and should address the following four principles:

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

Subsequently, during ICANN49 in Singapore (March 23-27, 2014), ICANN held flurried discussions to gather initial community feedback from participants to come up with a Draft Proposal of the Principles, Mechanisms and Process to Develop a Proposal to Transition NTIA’s Stewardship of the IANA Functions on 8 April 2014, which was open to public comments until 8 May 2014, which was further extended to 31 May 2014. Responses by various stakeholders were collected in this very short period and some of them were incorporated into a Revised Proposal issued by ICANN on 6th June 2014. ICANN also unilaterally issued a Scoping Document defining the scope of the process for developing the proposal and also specifying what was not part of the scope. This Scoping Document came under severe criticism by various commentators, but was not amended.

ICANN also initiated a separate but parallel process to discuss enhancement of its accountability on 6 May 2014. This was launched upon widespread distress over the fact that ICANN had excluded its role as operator of IANA functions from the Scoping Document, as well as over questions of accountability raised by the community at ICANN49 in Singapore. In the absence of ICANN’s contractual relationship with NTIA to operate the IANA functions, it remains unclear how ICANN will stay accountable upon the transition. The accountability process looks to address the same through the ICANN community. The issue of ICANN accountability is then envisioned to be coordination within ICANN itself through an ICANN Accountability Working Group comprised of community members and a few subject matter experts.

What are the IANA Functions?

Internet Assigned Numbers Authority, or IANA functions consist of three separate tasks:

Maintaining a central repository for protocol name and number registries used in many Internet protocols.
Co-ordinating the allocation of Internet Protocol (IP) and Autonomous System (AS) numbers to the Regional Internet Registries, who then distribute IP and AS numbers to ISPs and others within their geographic regions.
Processing root zone change requests for Top Level Domains (TLDs) and making the Root Zone WHOIS database consisting of publicly available information for all TLD registry operators.

The first two of the abovementioned functions are operated by ICANN in consonance with policy developed at the Internet Engineering Task Force (IETF) and Address Supporting Organisation (ASO) respectively, both of which exist under the ICANN umbrella.

The performance of last of these functions is distributed between ICANN and Verisign. NTIA has a Cooperative Agreement with Verisign to perform the related root zone management functions. The related root zone management functions are the management of the root zone “zone signing key” (ZSK), as well as implementation of changes to and distribution of the DNS authoritative root zone file, which is the authoritative registry containing the lists of names and addresses for all top level domains.

Currently, the US Government oversees this entire set of operations by contracting with ICANN as well as Verisign to execute the IANA functions. Though the US Government does not interfere generally in operations of either ICANN or Verisign in their role as operators of IANA functions, it cannot be denied that it exercises oversight on both the operators of IANA functions, through these contracts.

Import of the NTIA Announcement:

The NTIA announcement of 14th March intends to initiate the withdrawal of such oversight of IANA functions by the NTIA in order to move towards global multistakeholder governance. NTIA has asked ICANN to initiate a process to decide upon what such global multistakeholder governance of IANA functions may look like. The following diagram presents the current governance structure of IANA functions and the areas that the NTIA announcement seeks to change:

The IANA Oversight Mechanism (Source)

What does the NTIA Announcement NOT DO?

The NTIA announcement DOES NOT frame a model for governance of IANA functions once it withdraws its oversight role. NTIA has asked ICANN to convene a process, which would figure the details of IANA transition and propose an administrative structure for IANA functions once the NTIA withdraws its oversight role. But what this new administrative structure would look like has not itself been addressed in the NTIA announcement. As per the NTIA announcement, the new administrative structure is yet to be decided by a global multistakeholder community in accordance with the four principles outlined by the NTIA through a process, which ICANN shall convene.

The NTIA announcement DOES NOT limit discussions and participation in IANA transition process to within the ICANN community. NTIA has asked ICANN to convene “global stakeholders to develop a proposal to transition” IANA functions. This means all global stakeholders participation, including that of Governments and Civil Society is sought for the IANA transition process. ICANN has been asked “to work collaboratively with the directly affected parties, including the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB), the Internet Society (ISOC), the Regional Internet Registries (RIRs), top level domain name operators, VeriSign, and other interested global stakeholders”, in the NTIA announcement. This however does not signify that discussions and participation in development of proposal for IANA transition needs to be limited to the ICANN community or the technical community. In fact, ICANN has itself said that the list of events provided as “Timeline of Events” in its Draft Proposal of 8 April 2014 for engagement in development of a proposal for IANA transition is non-exhaustive. This means proposal for IANA transition can be developed by different stakeholders, including governments and civil society in different fora appropriate to their working, including at the IGF and WSIS+10.

The NTIA announcement DOES NOT mean devolution of IANA functions administration upon ICANN. NTIA chooses ICANN and Verisign to operate the IANA functions. If NTIA withdraws from its role, the question whether ICANN or Verisign should operate the IANA functions at all becomes an open one, and should be subject to deliberation. By merely asking ICANN to convene the process, the NTIA announcement in no way assigns any administration of IANA functions to ICANN. It must be remembered that the NTIA announcement says that key Internet domain name functions shall transition to the global multistakeholder community, and not the ICANN community.

The NTIA announcement DOES NOT prevent the possibility of removal of ICANN from its role as operator of IANA functions. While ICANN has tried to frame the Scoping Document in a language to prevent any discussions on its role as operator of IANA functions, the question whether ICANN should continue in its operator role remains an open one. There are at least 12 submissions made in response to ICANN’s Draft Proposal by varied stakeholders, which in fact, call for the separation of ICANN’s role as policy maker (through IETF, ASO, gNSO, ccNSO), and ICANN’s role as the operator of IANA functions. Such calls for separation come from private sector, civil society, as well as the technical community, among others. Such separation was also endorsed in the final NETmundial outcome document (paragraph 27). Governments have, in general, expressed no opinion on such separation in response to ICANN’s Draft Proposal. It is however urged that governments express their opinion in favour of such separation to prevent consolidation of both policy making and implementation within ICANN, which would lead to increased potential situations for the ICANN Board to abuse its powers.

For more details visit https://cis-india.org/internet-governance/blog/understanding-iana-transition

Do we need a Unified Post Transition IANA?

Pranesh Prakash, Padmini Baruah and Jyoti Panday — 2015-10-27T00:46:37Z

As we stand at the threshold of the IANA Transition, we at CIS find that there has been little discussion on the question of how the transition will manifest. The question we wanted to raise was whether there is any merit in dividing the three IANA functions – names, numbers and protocols – given that there is no real technical stability to be gained from a unified Post Transition IANA. The analysis of this idea has been detailed below.

The Internet Architecture Board, in a submission to the NTIA in 2011 claims that splitting the IANA functions would not be desirable.[1] The IAB notes, “There exists synergy and interdependencies between the functions, and having them performed by a single operator facilitates coordination among registries, even those that are not obviously related,” and also that that the IETF makes certain policy decisions relating to names and numbers as well, and so it is useful to have a single body. But they don’t say why having a single email address for all these correspondences, rather than 3 makes any difference: Surely, what’s important is cooperation and coordination. Just as IETF, ICANN, NRO being different entities doesn’t harm the Internet, splitting the IANA function relating to each entity won’t harm the Internet either. Instead will help stability by making each community responsible for the running of its own registers, rather than a single point of failure: ICANN and/or “PTI”.

A number of commentators have supported this viewpoint in the past: Bill Manning of University of Southern California’s ISI (who has been involved in DNS operations since DNS started), Paul M. Kane (former Chairman of CENTR's Board of Directors), Jean-Jacques Subrenat (who is currently an ICG member), Association française pour le nommage Internet en coopération (AFNIC), the Internet Governance Project, InternetNZ, and the Coalition Against Domain Name Abuse (CADNA).

The Internet Governance Project stated: “IGP supports the comments of Internet NZ and Bill Manning regarding the feasibility and desirability of separating the distinct IANA functions. Structural separation is not only technically feasible, it has good governance and accountability implications. By decentralizing the functions we undermine the possibility of capture by governmental or private interests and make it more likely that policy implementations are based on consensus and cooperation.”[2]

Similarly, CADNA in its 2011 submission to NTIA notes that that in the current climate of technical innovation and the exponential expansion of the Internet community, specialisation of the IANA functions would result in them being better executed. The argument is also that delegation of the technical and administrative functions among other capable entities (such as the IETF and IAB for protocol parameters, or an international, neutral organization with understanding of address space protocols as opposed to RIRs) determined by the IETF is capable of managing this function would ensure accountability in Internet operation. Given that the IANA functions are mainly registry-maintenance function, they can to a large extent be automated. However, a single system of automation would not fit all three.

Instead of a single institution having three masters, it is better for the functions to be separated. Most importantly, if one of the current customers wishes to shift the contract to another IANA functions operator, even if it isn’t limited by contract, it is limited by the institutional design, since iana.org serves as a central repository. This limitation didn’t exist, for instance, when the IETF decided to enter into a new contract for the RFC Editor role. This transition presents the best opportunity to cleave the functions logically, and make each community responsible for the functioning of their own registers, with IETF, which is mostly funded by ISOC, taking on the responsibility of handing the residual registries, and a discussion about the .ARPA and .INT gTLDs.

From the above discussion, three main points emerge:

Splitting of the IANA functions allows for technical specialisation leading to greater efficiency of the IANA functions.
Splitting of the IANA functions allows for more direct accountability, and no concentration of power.
Splitting of the IANA functions allows for ease of shifting of the {names,number,protocol parameters} IANA functions operator without affecting the legal structure of any of the other IANA function operators.

[1]. IAB response to the IANA FNOI, July 28, 2011. See: https://www.iab.org/wp-content/IAB-uploads/2011/07/IANA-IAB-FNOI-2011.pdf

[2]. Internet Governance Project, Comments of the Internet Governance Project on the NTIA's "Request for Comments on the Internet Assigned Numbers Authority (IANA) Functions" (Docket # 110207099-1099-01) February 25, 2011 See: http://www.ntia.doc.gov/federal-register-notices/2011/request-comments-internet-assigned-numbers-authority-iana-functions

For more details visit https://cis-india.org/internet-governance/blog/do-we-need-a-unified-post-tranistion-iana

IANA Transition Stewardship & ICANN Accountability (II)

jyoti — 2015-07-31T15:47:20Z

This paper is the second in a multi-part series, in which we provide an overview of submitted proposals and highlight areas of concern that will need attention moving forward. The series is a work in progress and will be updated as the processes move forward. It is up for public comments and we welcome your feedback.

The discussions and the processes established for transition plan have moved rapidly, though not fast enough—given the complicated legal and technical undertaking it is. ICG will be considering the submitted proposals and moving forward on consultations and recommendations for pending proposals. ICANN53 saw a lot of discussion on the implementation of the proposals from the numbers and protocols community, while the CWG addressed the questions related to the 2^nd draft of the names community proposal. The Protocol Parameters (IANA PLAN Working Group) submitted to ICG on 6 January 2015, while the Numbering Resources (CRISP Team) submitted on 15 January 2015. The Domain Names (CWG-Stewardship) submitted its second draft to ICG on 25 June 2015. The ICG had a face-to-face meeting in Buenos Aires and their proposal to transition the stewardship of the IANA functions is expected to be out for public comment July 31 to September 8, 2015. Parallelly, the CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015 and organised two working sessions at ICANN'53. More recently, the CCWG met in Paris focusing on the proposed community empowerment mechanisms, emerging concerns and progress on issues so far.

Number and Protocols Proposals

The numbering and the protocol communities have developed and approved their plans for the transition. Both communities are proposing a direct contractual relationship with ICANN, in which they have the ability to end the contract on their terms. The termination clause has seen push back from ICANN and teams involved in the negotiations have revealed that ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for IANA functions in perpetuity.[1] The emerging contentious negotiations on the issue of separability i.e., the ability to change to a different IANA functions operator, is an important issue.[2] As Milton Mueller points out, ICANN seems to be using these contract negotiations to undo the HYPERLINK "http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045"community process and that ICANN’s staff members are viewing themselves, rather than the formal IANA transition process shepherded by the ICG, as the final authority on the transition.[3] The attempts of ICANN Staff to influence or veto ideas regarding what solutions will be acceptable to NTIA and the Congress goes beyond its mandate to facilitate the transition dialogue. The ARIN meeting[4] and the process of updating MoU with IETF which mandates supplementary SLAs[5] are examples of ICANN leveraging its status as the incumbent IANA functions operator, with which all three operational communities must negotiate, to ensure that the outcome of the IANA transition process does not threaten its control.

Names Proposal

Recently, the CWG working on recommendations for the names related functions provided an improved 2nd draft of their earlier complex proposal which attempts to resolve the internal-external debate with a middle ground, with the creation of Post-Transition IANA (PTI). PTI a subsidiary/affiliate of the current contract-holder, ICANN, will be created and handed the IANA contract and its related technology and staff. Therefore, ICANN takes on the role of the contracting authority and PTI as the contracted party will perform the names-related IANA functions. Importantly, under the new proposal CWG has done away altogether with the requirement of “authorisation” to root zone changes and the reasons for this decision have not been provided. The proposal also calls for creation of a Customer Standing Committee (CSC) to continuously monitor the performance of IANA and creation a periodic review process, rooted in the community, with the ability to recommend ICANN relinquishing its role in names-related IANA functions, if necessary. A key concern area is the external oversight mechanism Multistakeholder Review Team– has been done away with. This is a significant departure from the version placed for public comment in December 2014. It is expected that clarification will be sought from the CWG on how it has factored in inputs from the first round of public comments.

Consensus around the CWG 2nd Draft

There is a growing consensus around the model proposed—the numbers community has commented on the proposal that it does "not foresee any incompatibility between the CWG's proposal”.[6] On the IANA PLAN list, members of the protocols community have also expressed willingness to accept the new arrangement to keep all the IANA functions together in PTI during the transition and view this as merely a reorganization.[7] However, acceptance of the proposal is pending till clarification related to how the PTI will be set up and its legal standing and scope are provided.

Structure of PTI

Presently, two corporate forms are being considered for the PTI, a nonprofit public benefit corporation (PBC) or a limited liability corporation (LLC), with a single member, ICANN, at its outset. Milton Mueller has advocated for the incorporation of PTI as a PBC rather than as a LLC, with its board composed of a mix of insiders and outsiders.[8] He is of the view that LLC form makes the implementation of PTI much more complex and risky as the CWG would need to debate mechanisms of control for the PTI as part of the transition process. The choice of structure is important as it will define the limitations and responsibilities that will be placed on the PTI Board—an important and necessary accountability mechanism.

Broadly, the division of views is around selection of the Board Members that is if they should be chosen either by IANA's customers or representative groups within ICANN or solely by the Board. The degree of autonomy which the PTI has given the existing ICANN structure is also a key developing question. Debate on autonomy of PTI are broadly centered around two distinct views of PTI being incorporated in a different country, to prevent ICANN from slowly subsuming the organization. The other view endorsed by ICANN states that a high degree of autonomy risks creates additional bureaucracy and process for no discernible improvement in actual services.

Functional Separability

Under the CWG-Stewardship draft proposal, ICANN would assume the role currently fulfilled by NTIA (overseeing the IANA function), while PTI would assume the role currently played by ICANN (the IANA functions operator). A divisive area here is that the goal of “functional separation” is defeated with PTI being structured as an “affiliate” wholly owned subsidiary, as it will be subject to management and policies of ICANN. From this view, while ICANN as the contracting party has the right of selecting future IANA functions operators, the legal and policy justification for this has not been provided. It is expected that ICANN'53 will see discussions around the PTI will focus on its composition, legal standing and applicability of the California law.

Richard Hill is of the view that the details of how PTI would be set up is critical for understanding whether or not there is "real" separation between ICANN and PTI leading to the conclusion of a meaningful contract in the sense of an agreement between two separate entities.[9] This functional separation and autonomy is granted by the combination of a legally binding contract, CSC oversight, periodic review and the possibility of non-renewal of the contract.[10]

Technical and policy roles - ICANN and PTI

The creation of PTI splits the technical and policy functions between ICANN and PTI. The ICANN Board comments on CWG HYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"PrHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"oHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"posal also confirm PTI having no policy role, nor it being intended to in the future, and that while it will have control of the budget amounts ceded to it by ICANN the funding of the PTI will be provided by ICANN as part of the ICANN budgeting process.[11] The comments from the Indian government on the proposal states this as an issue of concern, as it negates ICANN's present role as a merely technical coordination body. The concerns stem from placing ICANN in the role of the perpetual contracting authority for the IANA function makes ICANN the sole venue for decisions relating to naming policy as well as the entity with sole control over the PTI under the present wholly subsidiary entity.[12]

Key areas of work related to the distinction between the PTI and ICANN policy and technical functions include addressing how the new PFI Board would be structured, what its role would be, and what the legal construction between it and ICANN. The ICANN Board too has sought some important clarifications on its relationship as a parent body including areas where the PTI is separate from ICANN and areas where CWG sees shared services as being allowable (shared office space, HR, accounting, legal, payroll). It also sought clarification on the line of reporting, duties of the PTI Directors and alignment of PTI corporate governance with that of ICANN.

The Swedish government has commented that the next steps in this process would be clarification of the process for designing the PTI-IANA contract, a process to establish community consent before entering the contract, explicit mention of whom the contracting parties are and what their legal responsibilities would be in relation to it.[13]

Internal vs External Accountability

The ICANN Board, pushing for an internal model of full control of IANA Functions is of the view that a more independent PTI could somehow be "captured" and used to thwart the policies developed by ICANN. However, others have pointed out that under proposed structure PTI has strong ties to ICANN community that implements the policies developed by ICANN.[14] With no funding and no authority other than as a contractor of ICANN, if PTI is acting in a manner contrary to its contract it would be held in breach and could be replaced under the proposal.

Even so, as the Indian government has pointHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf"edHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf" out from the point of view of institutional architecture and accountability, this model is materially worse off than the status quo.[15]

The proposed PTI and ICANN relationship places complete reliance on internal accountability mechanisms within ICANN, which is not a prudent institutional design. The Indian government anticipates a situation where, in the event there is customer/ stakeholder dissatisfaction with ICANN’s role in naming policy development, there would be no mechanism to change the entity which fulfils this role. They feel that the earlier proposal for the creation of a Contract Co, a lightweight entity with the sole purpose of being the repository of contracting authority, and award contracts including the IANA Functions Contract provided a much more effective mechanism for external accountability. While the numbers and protocol communities have proposed a severable contractual relationship with ICANN for the performance of its SLAs no such mechanism exists with respect to ICANN's role in policy development for names.

Checks and Balances

Under the current proposal the Customer Standing Committee (CSC) has the role, of constantly reviewing the technical aspects of the naming function as performed by PTI. This, combined with the proposed periodic IANA Function Review (IFR), would act as a check on the PTI. The current draft proposal does not specify what will be the consequence of an unfavourable IANA Functions Review.

Some other areas of focus going forward relate to the IFR team inclusion in ICANN bylaws along the lines of the AOC established in 2009.[16] Also, ensuring the IFR team clarifies the scope of separability. The circumstances and procedures in place for pulling the IANA contract away if it has been established that ICANN is not fulfilling it contractual agreements. This will be a key accountability mechanism and deterrent for ICANN controlling the exercise of its influence.

CCWG Accountability

Work Stream (WS1): Responsible for drafting a mechanism for enhancing ICANN accountability, which must be in place before the IANA stewardship transition.

Work Stream (WS2): Addressing long term accountability topics which may extend beyond the IANA Stewardship Transition.

The IANA transition was recognized to be dependent on ICANN’s wider accountability, and this has exposed the trust issues between community and leadership and the proposal must be viewed in this context. The CCWG Draft Proposal attempts 4 significant new undertakings:

A. Restating ICANN’s Mission, Commitments, and Core Values, and placing those into the ICANN Bylaws. The CCWG has recommended that some segments of the Affirmation of Commitments (AOC)– a contract on operating principles agreed upon between ICANN and the United States government – be absorbed into the Corporation’s bylaws.

B. Establishing certain bylaws as “Fundamental Bylaws” that cannot be altered by the ICANN Board acting unilaterally, but over which stakeholders have prior approval rights;

C. Creating a formal “membership” structure for ICANN, along with “community empowerment mechanisms”. Some of the community empowerment mechanisms including (a) remove individual Board members, (b) recall the entire Board, (c) veto or approve changes to the ICANN Bylaws, Mission Statement, Commitments, and Core Values; and (d) to veto Board decisions on ICANN’s Strategic Plan and its budget;

D. Enhancing and strengthening ICANN's Independent Review Process (IRP) by creating a standing IRP Panel empowered to review actions taken by the corporation for compliance both with stated procedures and with the Bylaws, and to issue decisions that are binding upon the ICANN Board.

The key questions likely to be raised at ICANN 53 on several of these proposals will likely concern how these empowerment mechanisms affect the “legal nature” of the community.

Membership and Accountability

At the heart of the distrust between the ICANN Board and the community is the question of membership. ICANN as a corporation is a private sector body that is largely unregulated, with no natural competitors, cash-rich and directly or indirectly supports many of its participants and other Internet governance processes. Without effective accountability and transparency mechanisms, the opportunities for distortion, even corruption, are manifold. In such an environment, placing limitations on the Board’s power is critical to invoke trust. Three keys areas of accountability related to the Board include: no mechanisms for recall of individual board directors; the board’s ability to amend the company’s constitution (its bylaws), and the track record of board reconsideration requests.[17]

With no membership, ICANN’s directors represent the end of the line in terms of accountability. While there is a formal mechanism to review board decisions, the review is conducted by a subset of the same people. The CCWG’s proposal to create SOs/ACs as unincorporated “members” with Articles of Association has met with a lot of discussion, especially in the Governmental Advisory Council (GAC).[18] The GAC has posed several critical questions on this set up, some of which are listed here:

Can a legal person created and acting on behalf of the GAC become a member of ICANN, even though the GAC does not appoint Board members?
If GAC does not wish to become a member, how could it still be associated to the exercise of the 6 (community empowerment mechanisms) powers?
It is still unclear what the liability of members of future “community empowered structures” would be.
What are the legal implications on rights, obligations and liabilities of an informal group like the GAC creating an unincorporated association (UA) and taking decisions as such UA, from substantial (like exercising the community powers) to clerical (appointing its board, deciding on its financing) and whether there are implications when the members of such an UA are Governments?

Any proposal to strengthen accountability of ICANN needs to provide for membership so that there is ability to remove directors, creates financial accountability by receiving financial accounts and appointing editors and can check the ICANN’s board power to change bylaws without recourse to a higher authority.

Constitutional Undertaking

David Post and Danielle Kehl have pointed out that the CCWG correctly identifies the task it is undertaking – to ensure that ICANN’s power is adequately and appropriately constrained – as a “constitutional” one.[19] Their interpretation is based on the view that even if ICANN is not a true “sovereign,” it can usefully be viewed as one for the purpose of evaluating the sufficiency of checks on its power. Subsequently, the CCWG Draft Proposal, and ICANN’s accountability post-transition, can be understood and analyzed as a constitutional exercise, and that the transition proposal should meet constitutional criteria. Further, from this view the CCWG draft reflects the reformulation of ICANN around the broadly agreed upon constitutional criteria that should be addressed. These include:

A clear enumeration of the powers that the corporation can exercise, and a clear demarcation of those that it cannot exercise.
A division of the institution’s powers, to avoid concentrating all powers in one set of hands, and as a means of providing internal checks on its exercise.
Mechanism(s) to enforce the constraints of (1) and (2) in the form of meaningful remedies for violations.

Their comments reflect that they support CCWG in their approach and progress made in designing a durable accountability structure for a post-transition ICANN. However, they have stressed that a number of important omissions and/or clarifications need to be addressed before they can be confident that these mechanisms will, in practice, accomplish their mission. One such suggestion relates to ICANN’s policy role and PTI technical role separability. Given ICANN’s position in the DNS hierarchy gives it the power to impose its policies, via the web of contracts with and among registries, registrars, and registrants, on all users of the DNS, a constitutional balance for the DNS must preserve and strengthen the separation between DNS policy-making and policy-implementation. Importantly, they have clarified that even if ICANN has the power to choose what policies are in the best interest of the community it is not free to impose them on the community. ICANN's role is a critical though narrow one: to organize and coordinate the activities of that stakeholder community – which it does through its various Supporting Organizations, Advisory Committees, and Constituencies – and to implement the consensus policies that emerge from that process. Their comments on the CCWG draft call for stating this clarification explicitly and institutionalizing separability to be guided by this critical safeguard against ICANN’s abuse of its power over the DNS.

An effective implementation of this limitation will help clarify the role mechanisms being proposed such as the PTI and is critical for creating sustainable mechanisms, post-transition. More importantly, clarifying ICANN’s mission would ensure that in the post-transition communities could challenge its decisions on the basis that it is not pertaining to the role outlined or based on strengthening the stability and security of the DNS. Presently, it is very unclear where ICANN can interfere in terms of policymaking and implementation.

Other Issues

Other issues expected to be raised in the context of ICANN's overall accountabiltiy will likey concern the following:

Strengthening financial transparency and oversight

Given the rapid growth of the global domain name industry, one would imagine that ICANN is held up to the same standard of accountability as laid down in the right to information mechanisms countries such as India. CIS has been raising this issue for a while and has managed to received the list of ICANN’s current domain name revenues.[20]

By sharing this information, ICANN has shown itself responsive to repeated requests for transparency however, the shared revenue data is only for the fiscal year ending June 2014, and historical revenue data is still not publicly available. Neither is a detailed list (current and historical) of ICANN’s expenditures publicly available. Accountability mechanisms and discussions must seek that ICANN provide the necessary information during its regular Quarterly Stakeholder Reports, as well as on its website.

Strengthening transparency

A key area of concern is ICANN's unchecked influence and growing role as an institution in the IG space. Seen in the light of the impending transition, the transparency concerns gain significance and given ICANN's vocal interests in maintaining the status quo of its role in DNS Management. While financial statements (current and historic) are public and community discussions are generally open, the complexity of the contractual arrangements in place tracking the financial reserves available to ICANN through these processes are not sufficient.

Further, ICANN as a monopoly is presently constrained only by the NTIA review and few internal mechanisms like the Documentary Information Disclosure Policy (DIDP)[21], Ombudsman[22], Reconsideration and Independent Review[23] and the Accountability and Transparency Review (ATRT)[24]. These mechanisms are facing teething issues and some do not conform to the principles of natural justice. For example, a Reconsideration Request can be filed if one is aggrieved by an action of ICANN’s Board or staff. Under ICANN’s By-laws, it is the Board Governance Committee, comprising ICANN Board members, that adjudicates Reconsideration Requests.[25]

Responses to the DIDP requests filed by CIS reveal that the mechanism in its current form, is not sufficient to provide the transparency necessary for ICANN’s functioning. For instance, in the response to DIDP pertaining to the Ombudsman Requests[26], ICANN cites confidentiality as a reason to decline providing information as making Ombudsman Requests public would violate ICANN Bylaws, toppling the independence and integrity of the Ombudsman. Over December ’14 and January ’15, CIS sent 10 DIDP requests to ICANN with an aim was to test and encourage discussions on transparency from ICANN. We have received responses for 9 of our requests, and in 7 of those responses ICANN provides very little new information and moving forward we would stress the improvements of existing mechanisms along with introduction of new oversight and reporting parameters towards facilitating the transition process.[27]

[1]John Sweeting and others, 'CRISP Process Overview' (ARIN 35, 2015) https://regmedia.co.uk/2015/04/30/crisp_panel.pdf

[2]Andrew Sullivan, [Ianaplan] Update On IANA Transition & Negotiations With ICANN (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html

[3]Milton Mueller, ‘ICANN WANTS AN IANA FUNCTIONS MONOPOLY – WILL IT WRECK THE TRANSITION PROCESS TO GET IT?’ (Internet Governance Project, 28 April 2015) http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045

[4]Tony Smith, 'Event Wrap: ICANN 52' (APNIC Blog, 20 February 2015) http://blog.apnic.net/2015/02/20/event-wrap-icann-52/

[5]Internet Engineering Task Force, 'IPROC – IETF Protocol Registries Oversight Committee' (2015) https://www.ietf.org/iana/iproc.html

[6]Axel Pawlik, Numbers Community Proposal Contact Points With CWG’S Draft IANA Stewardship Transition Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00003.html

[7]Jari Arkko, Re: [Ianaplan] CWG Draft And Its Impact On The IETF (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01843.html

[8]Milton Mueller, Comments Of The Internet Governance Project (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00021.html

[9]Richard Hill, Initial Comments On CWG-Stewardship Draft Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00000.html

[10]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonp

[11]ICANN Board Comments On 2Nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions (20 May 2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf

[12]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[13]Anders Hektor, Sweden Comments To CWG-Stewardship (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00016.html

[14]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation |' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonprofit-public-benefit-corporation/

[15]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[16]Kieren McCarthy, 'Internet Kingmakers Drop Ego, Devise Future Of DNS, IP Addys Etc' (The Register, 24 April 2015) http://www.theregister.co.uk/2015/04/24/internet_kingmakers_drop_ego_devise_future_of_the_internet/

[17]Emily Taylor, ICANN: Bridging The Trust Gap (Paper Series No. 9, Global Commission on Internet Governance March 2015) https://regmedia.co.uk/2015/04/02/gcig_paper_no9-iana.pdf

[18]Milton Mueller, 'Power Shift: The CCWG’S ICANN Membership Proposal' (Internet Governance Project, 4 June 2015) http://www.internetgovernance.org/2015/06/04/power-shift-the-ccwgs-icann-membership-proposal/

[19]David Post, Submission Of Comments On CCWG Draft Initial Proposal (2015), Email http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00050.html

[20] Hariharan, 'ICANN reveals hitherto undisclosed details of domain names revenues', 8 December, 2014 See: http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014

[21] ICANN, Documentary Information Disclosure Policy See: https://www.icann.org/resources/pages/didp-2012-02-25-en

[22] ICANN Accountability, Role of the Ombudsman https://www.icann.org/resources/pages/accountability/ombudsman-en

[23] ICANN Reconsideration and independent review, ICANN Bylaws, Article IV, Accountability and Review https://www.icann.org/resources/pages/reconsideration-and-independent-review-icann-bylaws-article-iv-accountability-and-review

[24] ICANN Accountability and Transparency Review Final Recommendations https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf

[25] ICANN Bylaws Article iv, Section 2 https://www.icann.org/resources/pages/governance/bylaws-en#IV

[26] ICANN Response to DIDP Ombudsman https://www.icann.org/resources/pages/20141228-1-ombudsman-2015-01-28-en

[27] Table of CIS DIDP Requests See: http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file

For more details visit https://cis-india.org/internet-governance/blog/iana-transition-stewardship-and-icann-accountability-2

Jurisdiction: The Taboo Topic at ICANN

pranesh — 2016-06-29T07:51:05Z

The "IANA Transition" that is currently underway is a sham since it doesn't address the most important question: that of jurisdiction. This article explores why the issue of jurisdiction is the most important question, and why it remains unaddressed.

In March 2014, the US government announced that they were going to end the contract they have with ICANN to run the Internet Assigned Numbers Authority (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.

Why is the U.S. government removing the NTIA contract?

The main reason for the U.S. government's action is that it will get rid of a political thorn in the U.S. government's side: keeping the contract allows them to be called out as having a special role in Internet governance (with the Affirmation of Commitments between the U.S. Department of Commerce and ICANN, the IANA contract, and the cooperative agreement with Verisign), and engaging in unilateralism with regard to the operation of the root servers of the Internet naming system, while repeatedly declaring that they support a multistakeholder model of Internet governance.

This contradiction is what they are hoping to address. Doing away with the NTIA contract will also increase — ever so marginally — ICANN’s global legitimacy: this is something that world governments, civil society organizations, and some American academics have been asking for nearly since ICANN’s inception in 1998. For instance, here are some demands made in a declaration by the Civil Society Internet Governance Caucus at WSIS, in 2005:

“ICANN will negotiate an appropriate host country agreement to replace its California Incorporation, being careful to retain those aspects of its California Incorporation that enhance its accountability to the global Internet user community. "ICANN's decisions, and any host country agreement, must be required to comply with public policy requirements negotiated through international treaties in regard to, inter alia, human rights treaties, privacy rights, gender agreements and trade rules. … "It is also expected that the multi-stakeholder community will observe and comment on the progress made in this process through the proposed [Internet Governance] Forum."

In short: the objective of the transition is political, not technical. In an ideal world, we should aim at reducing U.S. state control over the core of the Internet's domain name system.¹

It is our contention that U.S. state control over the core of the Internet's domain name system is not being removed by the transition that is currently underway.

Why is the Transition Happening Now?

Despite the U.S. government having given commitments in the past that were going to finish the IANA transition by "September 30, 2000", (the White Paper on Management of Internet Names and Addresses states: "The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an 'outside' date.") and later by "fall of 2006",² those turned out to be empty promises. However, this time, the transition seems to be going through, unless the U.S. Congress manages to halt it.

However, in order to answer the question of "why now?" fully, one has to look a bit at the past.

In 1998, through the White Paper on Management of Internet Names and Addresses the U.S. government asserted it’s control over the root, and asserted — some would say arrogated to itself — the power to put out contracts for both the IANA functions as well as the 'A' Root (i.e., the Root Zone Maintainer function that Network Solutions Inc. then performed, and continues to perform to date in its current avatar as Verisign). The IANA functions contract — a periodically renewable contract — was awarded to ICANN, a California-based non-profit corporation that was set up exclusively for this purpose, but which evolved around the existing IANA (to placate the Internet Society).

Meanwhile, of course, there were criticisms of ICANN from multiple foreign governments and civil society organizations. Further, despite it being a California-based non-profit on contract with the government, domestically within the U.S., there was pushback from constituencies that felt that more direct U.S. control of the DNS was important.

As Goldsmith and Wu summarize:

"Milton Mueller and others have shown that ICANN’s spirit of “self-regulation” was an appealing label for a process that could be more accurately described as the U.S. government brokering a behind-the-scenes deal that best suited its policy preferences ... the United States wanted to ensure the stability of the Internet, to fend off the regulatory efforts of foreign governments and international organizations, and to maintain ultimate control. The easiest way to do that was to maintain formal control while turning over day-to-day control of the root to ICANN and the Internet Society, which had close ties to the regulation-shy American technology industry." [footnotes omitted]

And that brings us to the first reason that the NTIA announced the transition in 2014, rather than earlier.

ICANN Adjudged Mature Enough

The NTIA now sees ICANN as being mature enough: the final transition was announced 16 years after ICANN's creation, and complaints about ICANN and its legitimacy had largely died down in the international arena in that while. Nowadays, governments across the world send their representatives to ICANN, thus legitimizing ICANN. States have largely been satisfied by participating in the Government Advisory Council, which, as its name suggests, only has advisory powers. Further, unlike in the early days, there is no serious push for states assuming control of ICANN. Of course they grumble about the ICANN Board not following their advice, but no government, as far as I am aware, has walked out or refused to participate.

L'affaire Snowden

Many within the United States, and some without, believe that the United States not only plays an exceptional role to play in the running of the Internet — by dint of historical development and dominance of American companies — but that it ought to have an exceptional role because it is the best country to exercise 'oversight' over 'the Internet' (often coming from clueless commentators), and from dinosaurs of the Internet era, like American IP lawyers and American 'homeland' security hawks, Jones Day, who are ICANN's lawyers, and other jingoists and those policymakers who are controlled by these narrow-minded interests.

The Snowden revelations were, in that way, a godsend for the NTIA, as it allowed them a fig-leaf of international criticism with which to counter these domestic critics and carry on with a transition that they have been seeking to put into motion for a while. The Snowden revelations led Dilma Rousseff, President of Brazil, to state in September 2013, at the 68th U.N. General Assembly, that Brazil would "present proposals for the establishment of a civilian multilateral framework for the governance and use of the Internet", and as Diego Canabarro points out this catalysed the U.S. government and the technical community into taking action.

Given this context, a few months after the Snowden revelations, the so-called I* organizations met — seemingly with the blessing of the U.S. government³ — in Montevideo, and put out a 'Statement on the Future of Internet Governance' that sought to link the Snowden revelations on pervasive surveillance with the need to urgently transition the IANA stewardship role away from the U.S. government. Of course, the signatories to that statement knew fully well, as did most of the readers of that statement, that there is no linkage between the Snowden revelations about pervasive surveillance and the operations of the DNS root, but still they, and others, linked them together. Specifically, the I* organizations called for "accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing."

One could posit the existence of two other contributing factors as well.

Given political realities in the United States, a transition of this sort is probably best done before an ultra-jingoistic President steps into office.

Lastly, the ten-yearly review of the World Summit on Information Society was currently underway. At the original WSIS (as seen from the civil society quoted above) the issue of US control over the root was a major issue of contention. At that point (and during where the 2006 date for globalization of ICANN was emphasized by the US government).

Why Jurisdiction is Important

Jurisdiction has a great many aspects. Inter alia, these are:

Legal sanctions applicable to changes in the root zone (for instance, what happens if a country under US sanctions requests a change to the root zone file?)
Law applicable to resolution of contractual disputes with registries, registrars, etc.
Law applicable to labour disputes.
Law applicable to competition / antitrust law that applies to ICANN policies and regulations.
Law applicable to disputes regarding ICANN decisions, such as allocation of gTLDs, or non-renewal of a contract.
Law applicable to consumer protection concerns.
Law applicable to financial transparency of the organization.
Law applicable to corporate condition of the organization, including membership rights.
Law applicable to data protection-related policies & regulations.
Law applicable to trademark and other speech-related policies & regulations.
Law applicable to legal sanctions imposed by a country against another.

Some of these, but not all, depend on where bodies like ICANN [the policy-making body], the IANA functions operator [the proposed "Post-Transition IANA"], and the root zone maintainer are incorporated or maintain their primary office, while others depend on the location of the office [for instance, Turkish labour law applies for the ICANN office in Istanbul], while yet others depend on what's decided by ICANN in contracts (for instance, the resolution of contractual disputes with ICANN, filing of suits with regard to disputes over new generic TLDs, etc.).

However, an issue like sanctions, for instance, depends on where ICANN/PTI/RMZ are incorporated and maintain their primary office.

As Milton Mueller notes, the current IANA contract "requires ICANN to be incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."

He further notes that:

While it is common to assert that the U.S. has never abused its authority and has always taken the role of a neutral steward, this is not quite true. During the controversy over the .xxx domain, the Bush administration caved in to domestic political pressure and threatened to block entry of the domain into the root if ICANN approved it (Declaration of the Independent Review Panel, 2010). It took five years, an independent review challenge and the threat of litigation from a businessman willing to spend millions to get the .xxx domain into the root.

Thus it is clear that even if the NTIA's role in the IANA contract goes away, jurisdiction remains an important issue.

U.S. Doublespeak on Jurisdiction

In March 2014, when NTIA finally announced that they would hand over the reins to “the global multistakeholder community”. They’ve laid down two procedural condition: that it be developed by stakeholders across the global Internet community and have broad community consensus, and they have proposed 5 substantive conditions that any proposal must meet:

Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the Internet DNS;
Meet the needs and expectation of the global customers and partners of the IANA services; and,
Maintain the openness of the Internet.
Must not replace the NTIA role with a solution that is government-led or an inter-governmental organization.

In that announcement there is no explicit restriction on the jurisdiction of ICANN (whether it relate to its incorporation, the resolution of contractual disputes, resolution of labour disputes, antitrust/competition law, tort law, consumer protection law, privacy law, or speech law, and more, all of which impact ICANN and many, but not all, of which are predicated on the jurisdiction of ICANN’s incorporation), the jurisdiction(s) of the IANA Functions Operator(s) (i.e., which executive, court, or legislature’s orders would it need to obey), and the jurisdiction of the Root Zone Maintainer (i.e., which executive, court, or legislature’s orders would it need to obey).

However, Mr. Larry Strickling, the head of the NTIA, in his testimony before the U.S. House Subcommittee on Communications and Technology, made it clear that,

“Frankly, if [shifting ICANN or IANA jurisdiction] were being proposed, I don't think that such a proposal would satisfy our criteria, specifically the one that requires that security and stability be maintained.”

Possibly, that argument made sense in 1998, due to the significant concentration of DNS expertise in the United States. However, in 2015, that argument is hardly convincing, and is frankly laughable.⁴

Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:

"So as we understand it, the technical stability of the DNS doesn't necessarily depend on ICANN's jurisdiction being in the United States. So I wanted to ask would the US Congress support a multistakeholder and continuing in the event that it's shifting jurisdiction."

Mr. Strickling's response was:

"No. I think Congress has made it very clear and at every hearing they have extracted from Fadi a commitment that ICANN will remain incorporated in the United States. Now the jurisdictional question though, as I understand it having been raised from some other countries, is not so much jurisdiction in terms of where ICANN is located. It's much more jurisdiction over the resolution of disputes.

"And that I think is an open issue, and that's an appropriate one to be discussed. And it's one I think where ICANN has made some movement over time anyway.

"So I think you have to ... when people use the word jurisdiction, we need to be very precise about over what issues because where disputes are resolved and under what law they're resolved, those are separate questions from where the corporation may have a physical headquarters."

As we have shown above, jurisdiction is not only about the jurisdiction of "resolution of disputes", but also, as Mueller reminds us, about the requirement that ICANN (and now, the PTI) be "incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."

In essence, the U.S. government has essentially said that they would veto the transition if the jurisdiction of ICANN or PTI's incorporation were to move out of the U.S., and they can prevent that from happening after the transition, since as things stand ICANN and PTI will still come within the U.S. Congress's jurisdiction.

Why Has the ICG Failed to Consider Jurisdiction?

Will the ICG proposal or the proposed new ICANN by-laws reduce existing U.S. control? No, they won't. (In fact, as we will argue below, the proposed new ICANN by-laws make this problem even worse.) The proposal by the names community ("the CWG proposal") still has a requirement (in Annex S) that the Post-Transition IANA (PTI) be incorporated in the United States, and a similar suggestion hidden away as a footnote. Further, the proposed by-laws for ICANN include the requirement that PTI be a California corporation. There was no discussion specifically on this issue, nor any documented community agreement on the specific issue of jurisdiction of PTI's incorporation.

Why wasn't there greater discussion and consideration of this issue? Because of two reasons: First, there were many that argued that the transition would be vetoed by the U.S. government and the U.S. Congress if ICANN and PTI were not to remain in the U.S. Secondly, the ICANN-formed ICG saw the US government’s actions very narrowly, as though the government were acting in isolation, ignoring the rich dialogue and debate that’s gone on earlier about the transition since the incorporation of ICANN itself.

While it would be no one’s case that political considerations should be given greater weightage than technical considerations such as security, stability, and resilience of the domain name system, it is shocking that political considerations have been completely absent in the discussions in the number and protocol parameters communities, and have been extremely limited in the discussions in the names community. This is even more shocking considering that the main reason for this transition is, as has been argued above, political.

It can be also argued that the certain IANA functions such as Root Zone Management function have a considerable political implication. It is imperative that the political nature of the function is duly acknowledged and dealt with, in accordance with the wishes of the global community. In the current process the political aspects of the IANA function has been completely overlooked and sidelined. It is important to note that this transition has not been a necessitated by any technical considerations. It is primarily motivated by political and legal considerations. However, the questions that the ICG asked the customer communities to consider were solely technical. Indeed, the communities could have chosen to overlook that, but they did not choose to do so. For instance, while the IANA customer community proposals reflected on existing jurisdictional arrangements, they did not reflect on how the jurisdictional arrangements should be post-transition , while this is one of the questions at the heart of the entire transition. There were no discussions and decisions as to the jurisdiction of the Post-Transition IANA: the Accountability CCWG's lawyers, Sidley Austin, recommended that the PTI ought to be a California non-profit corporation, and this finds mention in a footnote without even having been debated by the "global multistakeholder community", and subsequently in the proposed new by-laws for ICANN.

Why the By-Laws Make Things Worse & Why "Work Stream 2" Can't Address Most Jurisdiction Issues

The by-laws could have chosen to simply stayed silent on the matter of what law PTI would be incorporated under, but instead the by-law make the requirement of PTI being a California non-profit public benefit corporation part of the fundamental by-laws, which are close to impossible to amend.

While "Work Stream 2" (the post-transition work related to improving ICANN's accountability) has jurisdiction as a topic of consideration, the scope of that must necessarily discount any consideration of shifting the jurisdiction of incorporation of ICANN, since all of the work done as part of CCWG Accountability's "Work Stream 1", which are now reflected in the proposed new by-laws, assume Californian jurisdiction (including the legal model of the "Empowered Community"). Is ICANN prepared to re-do all the work done in WS1 in WS2 as well? If the answer is yes, then the issue of jurisdiction can actually be addressed in WS2. If the answer is no — and realistically it is — then, the issue of jurisdiction can only be very partially addressed in WS2.

Keeping this in mind, we recommended specific changes in the by-laws, all of which were rejected by CCWG's lawyers.

The Transition Plan Fails the NETmundial Statement

The NETmundial Multistakeholder Document, which was an outcome of the NETmundial process, states:

In the follow up to the recent and welcomed announcement of US Government with regard to its intent to transition the stewardship of IANA functions, the discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community

[...]

It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.

The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization.

As our past analysis has shown, the IANA transition process and the discussions on the mailing lists that shaped it were neither global nor multistakeholder. The DNS industry represented in ICANN is largely US-based. 3 in 5 registrars are from the United States of America, whereas less than 1% of ICANN-registered registrars are from Africa. Two-thirds of the Business Constituency in ICANN is from the USA. While ICANN-the-corporation has sought to become more global, the ICANN community has remained insular, and this will not change until the commercial interests involved in ICANN can become more diverse, reflecting the diversity of users of the Internet, and a TLD like .COM can be owned by a non-American corporation and the PTI can be a non-American entity.

What We Need: Jurisdictional Resilience

It is no one's case that the United States is less fit than any other country as a base for ICANN, PTI, or the Root Zone Maintainer, or even as the headquarters for 9 of the world's 12 root zone operators (Verisign runs both the A and J root servers). However, just as having multiplicity of root servers is important for ensuring technical resilience of the DNS system (and this is shown in the uptake of Anycast by root server operators), it is equally important to have immunity of core DNS functioning from political pressures of the country or countries where core DNS infrastructure is legally situated and to ensure that we have diversity in terms of legal jurisdiction.

Towards this end, we at CIS have pushed for the concept of "jurisdictional resilience", encompassing three crucial points:

Legal immunity for core technical operators of Internet functions (as opposed to policymaking venues) from legal sanctions or orders from the state in which they are legally situated.
Division of core Internet operators among multiple jurisdictions
Jurisdictional division of policymaking functions from technical implementation functions

Of these, the most important is the limited legal immunity (akin to a greatly limited form of the immunity that UN organizations get from the laws of their host countries). This kind of immunity could be provided through a variety of different means: a host-country agreement; a law passed by the legislature; a U.N. General Assembly Resolution; a U.N.-backed treaty; and other such options exist. We are currently investigating which of these options would be the best option.

And apart from limited legal immunity, distribution of jurisdictional control is also valuable. As we noted in our submission to the ICG in September 2015:

Following the above precepts would, for instance, mean that the entity that performs the role of the Root Zone Maintainer should not be situated in the same legal jurisdiction as the entity that functions as the policymaking venue. This would in turn mean that either the Root Zone Maintainer function be taken up Netnod (Sweden-headquartered) or the WIDE Project (Japan-headquartered) [or RIPE-NCC, headquartered in the Netherlands], or that if the IANA Functions Operator(s) is to be merged with the RZM, then the IFO be relocated to a jurisdiction other than those of ISOC and ICANN. This, as has been stated earlier, has been a demand of the Civil Society Internet Governance Caucus. Further, it would also mean that root zone servers operators be spread across multiple jurisdictions (which the creation of mirror servers in multiple jurisdictions will not address).

However, the issue of jurisdiction seems to be dead-on-arrival, having been killed by the United States government.

Unfortunately, despite the primary motivation for demands for the IANA transition being those of removing the power the U.S. government exercises over the core of the Internet's operations in the form of the DNS, what has ended up happening through the IANA transition is that these powers have not only not been removed, but in some ways they have been entrenched further! While earlier, the U.S. had to specify that the IANA functions operator had to be located in the U.S., now ICANN's by-laws themselves will state that the post-transition IANA will be a California corporation. Notably, while the Montevideo Declaration speaks of "globalization" of ICANN and of the IANA functions, as does the NETmundial statement, the NTIA announcement on their acceptance of the transition proposals speaks of "privatization" of ICANN, and not "globalization".

All in all, the "independence" that IANA is gaining from the U.S. is akin to the "independence" that Brazil gained from Portugal in 1822. Dom Pedro of Brazil was then ruling Brazil as the Prince Regent since his father Dom João VI, the King of United Kingdom of Portugal, Brazil and the Algarves had returned to Portugal. In 1822, Brazil declared independence from Portugal (which was formally recognized through a treaty in 1825). Even after this "independence", Dom Pedro continued to rule Portugal just as he had before indepedence, and Dom João VI was provided the title of "Emperor of Brazil", aside from being King of the United Kingdom of Portugal and the Algarves. The "indepedence" didn't make a whit of a difference to the self-sufficiency of Brazil: Portugal continued to be its largest trading partner. The "independence" didn't change anything for the nearly 1 million slaves in Brazil, or to the lot of the indigenous peoples of Brazil, none of whom were recognized as "free". It had very little consequence not just in terms of ground conditions of day-to-day living, but even in political terms.

Such is the case with the IANA Transition: U.S. power over the core functioning of the Domain Name System do not stand diminished after the transition, and they can even arguably be said to have become even more entrenched. Meet the new boss: same as the old boss.

It is an allied but logically distinct issue that U.S. businesses — registries and registrars — dominate the global DNS industry, and as a result hold the reins at ICANN.↩
As Goldsmith & Wu note in their book Who Controls the Internet: "Back in 1998 the U.S. Department of Commerce promised to relinquish root authority by the fall of 2006, but in June 2005, the United States reversed course. “The United States Government intends to preserve the security and stability of the Internet’s Domain Name and Addressing System (DNS),” announced Michael D. Gallagher, a Department of Commerce official. “The United States” he announced, will “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”↩
Mr. Fadi Chehadé revealed in an interaction with Indian participants at ICANN 54 that he had a meeting "at the White House" about the U.S. plans for transition of the IANA contract before he spoke about that when he visited India in October 2013 making the timing of his White House visit around the time of the Montevideo Statement.↩
As an example, NSD, software that is used on multiple root servers, is funded by a Dutch foundation and a Dutch corporation, and written mostly by European coders.↩

For more details visit https://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann

Submission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior

vidushi — 2016-06-30T06:07:37Z

Prepared by Vidushi Marda, with inputs from Dr. Nirmita Narasimhan and Sunil Abraham.

We at the Centre for Internet and Society (“CIS”) are grateful for the opportunity to comment on the proposed revisions to ICANN’s Expected Standards of Behavior (“Standards”).

Before providing specific comments on the proposed revisions, CIS would like to state for the record our extreme disappointment while noting that there is no indication of the intention to draft and adopt a dedicated anti - harassment policy. We are of the firm opinion that harassment, and particularly sexual harassment, is not only a sensitive topic, but also a deeply complex one. Such a policy should consider scope, procedural questions, redressal and remedies in cases of harassment in general and sexual harassment in particular. A mere change in language to these Standards, however well intentioned, cannot go too far in preventing and dealing with cases of harassment in the absence of a framework within which such instances can be addressed.

Some of the issues that arose at ICANN55 were confusion surrounding the powers and limits of the Ombudsman’s office in dealing with cases of harassment, the exact procedure to be followed for redressal surrounding such incidents, and the appropriate conduct of parties to the matter. There will be no clarity in these respects, even if these proposed changes are to be adopted.

Specifically, the proposed language is problematic and completely inadequate for the following reasons:

Vague

Terms like “professional conduct” and “appropriate behavior” mean little in the absence of a definition that entails such conduct. These terms could mean vastly different things to each community member and such language will only encourage a misalignment of expectation of conduct between community members. The “general” definition of harassment is at best, an ineffective placeholder, as it does not encompass exactly what kind of behavior would fall under its definition.
Fails to consider important scenarios

The proposed language fails to consider situations where some attempts or advances at communication, sexual or otherwise, occur. For example, consider a situation in which one community member stalks another online, and catalogues his/her every move. This is most certainly foreseeable, but will not be adequately covered by the proposed language. Further, terms like “speech or behavior that is sexually aggressive or intimidates” could or could not include types of speech such as art, music, photography etc, depending on who you ask. It also does not explain the use of the word behavior - physical, emotional, professional, online behavior are all possible, but the scope of this term would depend on the interpretation one chooses to apply. In part 4 below, we will demonstrate how ICANN has applied a far more detailed framework for harassment elsewhere.
Ignores complexity

In discussions surrounding the incident at ICANN55, a number of issues of arose. These included, inter alia, the definition of harassment and sexual harassment, what constituted such conduct, the procedure to be followed in such cases, the appropriate forum to deal with such incidents and the conduct that both parties are expected to maintain. These questions cannot, and have not been answered or addressed in the proposed change to the Standards. CIS emphasizes the need to understand this issue as one that must imbibe differences in culture, expectation, power dynamics, and options for redressal. If ICANN is to truly be a safe space, such issues must be substantively and procedurally fair for both the accused and the victim. This proposed definition is woefully inadequate in this regard.
Superficial understanding of harassment, sexual harassment

The proposed changes do not define harassment, and sexual harassment in an adequate fashion. The change currently reads, “Generally, harassment is considered unwelcome hostile or intimidating behavior -- in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.” These are subject to broad interpretation, and we have already highlighted the issues that may arise due to this in 1, above. Here, we would like to point to a far more comprehensive definition.

ICANN’s own Employment Policy includes within the scope of sexual harassment “verbal, physical and visual conduct that creates an intimidating, offensive or hostile working environment, or interferes with work performance.” The policy also states:

Harassing conduct can take many forms and includes, but is not limited to, the following:

Slurs, jokes, epithets, derogatory comments, statements or gestures;

Assault, impeding or blocking another’s movement or otherwise physically interfering with normal work;

Pictures, posters, drawings or cartoons based upon the characteristics mentioned in the first paragraph of this policy.
Sexually harassing conduct includes all of the above prohibited actions, as well as other unwelcome conduct, such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.”

This definition is not perfect, it does not comprehensively consider advances or attempts at communication, sexual or otherwise, which are unwelcome by the target. Nonetheless, CIS believes that this is a far more appropriate definition that does not include vague metrics that the proposed changes do. Since it is one ICANN has already adopted, it can act as an important stepping stone towards a comprehensive framework.

Like ICANN, UNESCO’s organisational approach has been to adopt a comprehensive Anti-Harassment Policy which lays down details of definition, prevention, complaint procedure, investigations, sanctions, managerial responsibility, etc. Acknowledging the cultural sensitivity of harassment particularly in international situations, the policy also recognizes advances or attempts at communication, sexual or otherwise. Most importantly, it states that for conduct to come within the definition of sexual harassment, it “must be unwelcome, i.e. unsolicited and regarded as offensive or undesirable by the victim.”

Conclusion

In conclusion, we would like to reiterate the importance of adopting and drafting a dedicated anti-harassment policy and framework. The benefits of safety, certainty and formal redressal mechanisms in cases of harassment cannot be over emphasized.

Importantly, such measures have already been taken elsewhere. The IETF has adopted an instrument to address issues of harassment that occur at meetings, mailing lists and social events. This instrument contemplates in detail, problematic behavior, unacceptable conduct, the scope of the term harassment, etc. It further envisages a framework for redressal of complaints, remediation, and even contemplates issues that may arise with such remediation. It is particularly important to note that while it provides a definition of harassment, it also states that "[a]ny definition of harassment prohibited by an applicable law can be subject to this set of procedures, recognising harassment as a deeply personal and subjective experience, and thus encouraging members to take up issues of harassment as per their cultural norms and national laws, which are then considered as per procedures laid down."

A similar effort within the ICANN community is critical.

For more details visit https://cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior