November 2016 elections will determine fate of Internet privatization

A process is presently ongoing to privatize the Internet technical functions under the IANA (Internet Assigned Names Authority) Contract  outside the direct control of the U.S. government. Currently, the IANA Contractor is the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based non-profit that handles this task under the supervision of the U.S. National Technology & Information Administration (NTIA).

This program was commenced by the NTIA in March 2014 when it instructed a Global Multi-Stakeholder Community under ICANN to develop a proposal that will guide the process of transitioning the IANA functions outside the oversight of the NTIA.

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Since the technical architecture of the Internet is a U.S. government research innovation, the IANA functions have always been under U.S. government control.

The IANA privatization would have probably happened quietly, if the issue had not been brought to the attentions of the U.S. Congress.

Since Congress became aware of the issue, several hearings have been held by the pertinent Senate  and  House committees. This additional hurdle of Congressional approval is what the proponents of the IANA transition had not fully prepared for.

The main issues of the IANA transition can be simply reduced to: (1) whether the technical stewardship of the Internet can be handed to a non-governmental organization (ICANN) without any future governmental oversight; and if ICANN could be trusted to act accountably at all times after the transition; and, (2) what problems exist with current IANA functions management that the transition would need to fix.

The second issue – of identifying what needs to be fixed – has not been answered satisfactorily; yet, those facilitating the program have developed elaborate proposals which, in the Post-Transition IANA (PTI) regime, essentially replace the present role of the NTIA with ICANN’s future role; while ICANN’s current role will be taken over by an ICANN subsidiary! Nevertheless, it has not been properly explained why the NTIA is stepping out of the picture. One convenient excuse which is typically offered is that a decision by the U.S. government to step back would make other foreign governments happy – the same governments that have been pushing for a reduced U.S. role; and that this privatization is the final phase of what was started by the U.S. government since July 1997.

Regarding whether ICANN can be trusted to act accountably in a PTI regime, this remains to be seen. Even under current NTIA supervision, ICANN violated its Bylaws and Articles of Incorporation when it lost in an Independent Review Panel (IRP) process. The IRP loss is significant because ICANN lost in a juridical process that was based on its own accountability mechanism.

Therefore, who will guarantee that ICANN will not continue to flout its own Bylaws and Articles of Incorporation when it is no longer being supervised by the NTIA?

The proponents of the privatization are calculating that Congressional procedures and required U.S. government inter-agency inputs are a mere formality; and that after mandatory reviews by the U.S. Government Accountability Office, the deal would be approved. Based on this, the NTIA has again extended the current IANA Contract with ICANN  till September 30, 2016, to allow additional time for necessary deliberation. Even so, there are existing options to extend the contract performance period up to September 30, 2019.

What is clear is that whether the proposal scales these hurdles or not, the privatization will not happen before March 2017. The September 30, 2016 will be a few weeks before the November 2016 U.S. elections, and if the IANA Transition is made a campaign issue, chances are that the 114th Congress will not approve the proposal immediately.  The coming elections will result in a new Congress – the 115th; and a possible change of the administration party. If the Republicans form the next federal government in January 2017, chances are that the entire transition program will be revisited. Accordingly, whether the transition will be approved or not will be based on how the Republicans evaluate the issue of fear of capture of the Internet DNS by foreign governments. Moreover, the most important question of ‘why transition at all?’ has not been thoroughly answered by anyone – especially by those who want to fix what is not broken.

If, as has been argued by some other writers, governments want more power within the ICANN ecosystem, an unsupervised PTI-ICANN will also be pressured by various governments. Therefore, why limit or remove U.S. government supervision of ICANN only for the same ICANN to come under the unrestricted influence of many other foreign governments? Thus, because of this unresolved risk, Congress should take heed and not approve the program.

Bekele is CEO of DCA Trust and CBS International. She is a former ICANN policy adviser and adviser to various UN agencies on ICTs, and the founder and spearhead of the Yes2DotAfrica campaign.

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