Rewriting the future of Internet governance

Americans created, built, and advanced the Internet, while leading the effort to protect it from censorship or discriminatory taxes and regulation.  But now the U.S. government is releasing a big part of its stewardship role, leaving it to others to chart a path that keeps the Internet secure, stable, and successful.

Last week the Commerce Department announced that it would relinquish control of its contractual authority over the Internet’s global addressing system.

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The positive global response was immediate and vocal, signaling that the move might relieve some of  the intense pressure from foreign governments demanding an end to the United States’ unique legacy role in Internet oversight.

That pressure, which has existed for more than a decade, spiked following the Snowden revelations, despite the lack of any linkage between NSA surveillance and the technical operation of the Internet’s addressing system.

By relinquishing its legacy ties, the administration may relieve a thorny diplomatic problem, but the effect this move will have on the Internet itself is less clear.

Commerce has asked for a transition plan to move control of the Domain Name System into the hands of “the global multistakeholder community”, and it called upon ICANN to develop that plan.  ICANN is the nonprofit Internet Corporation for Assigned Names and Numbers, created by the Clinton Administration in 1998 to assume day-to-day functions and policymaking for Internet addresses.

The Commerce Department had oversight over ICANN for the subsequent decade, conducting performance reviews and occasionally reassuring the world about U.S. stewardship.   In 2005 when some nations hinted at shifting the U.S. role to the United Nations, Commerce “committed to taking no action that would have the potential to adversely impact the effective and efficient operation of the DNS and will therefore maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”

By 2009, ICANN had matured to the point that oversight could be relaxed in favor of an agreement with the Commerce Department, known as the Affirmation of Commitments.   Under this document, the U.S. Government gave up its direct oversight in exchange for ICANN’s commitment to serve the global public interest, subject to regular reviews of its accountability and transparency, and the security, stability, and resiliency of the domain name system.  For all its worth, however, the Affirmation can be cancelled by ICANN with just a 120-day notice.

But with or without the Affirmation in place, the U.S. Government has always retained the contractual authority to pull the plug on ICANN if it failed to live up to its obligations.  In 2012, for example, Commerce Undersecretary Larry Strickling used his contractual authority to pressure ICANN to raise its operational standards for managing the root zone.

Now, the Commerce Department is letting go of the plug, suggesting this kind of contract leverage is no longer needed and that ICANN has matured to the point that it needs no external authority.  While the politics of this decision may make all the sense in the world, the process of transition and the methods that will replace U.S. oversight have yet to be developed.

The government’s current contract with ICANN runs through September 2015, by which time the Commerce Department must approve the transition plan ICANN comes up with.  Commerce announced a few conditions under which it will approve a transition proposal, and there is plenty of time for the Administration to raise the bar for ICANN.

The Commerce Department should reject any transition plan that leaves ICANN accountable only to itself and to the world, since that’s like being accountable to nobody at all. If ICANN is no longer going to answer to the U.S. Government, it must answer to someone with the authority to correct the organization if it goes astray.

Commerce has promised it would reject any transition plan that gives control to governments or intergovernmental bodies like the UN.  But once ICANN has full control, Commerce won’t have the contractual leverage to prevent governments from capturing ICANN.

Congress can also play a role, by asking how the Administration came to this decision at this time, and by advising the Commerce Department on how to hand-off control without dropping the ball on the Internet’s security and stability.

But ultimately, it will fall to the private sector and civil society – through our participation in ICANN – to design mechanisms that pressure ICANN to be responsible and accountable. The “global multistakeholder community” may not be ready for the task that the Commerce Department has handed us.  But ready or not, the future of the Internet may hinge on our success.

DelBianco is the executive director of NetChoice.

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