U.S. plans to hand over Internet oversight role
The United States government in March proposed a handing over of the key oversight role it holds in global Internet governance — a role that currently grants it ultimate authority over many critical parts of Internet function. The proposition initially raised some concerns about the transition of this role, including the possibility that authoritarian regimes could take control of the Internet and implement widespread censorship.
This is just one issue to be addressed at the 2014 Internet Governance Forum USA, taking place at George Washington University in Washington, D.C., on Wednesday, July 16. Leaders from the Internet multistakeholder community will come together with activists, scholars and members of government, to discuss topics such as where human rights fit into Internet governance, net neutrality and "increasing the accountability of ICANN" — the organization this entire system of governance functions around.
Though the White House has said it is committed to handing authority over to the multistakeholder community, Washington, D.C., has been "abuzz" with several congressional hearings taking place with the House Energy and Commerce Committee as well as the Judiciary Committee, and discussions and briefings with the Hudson Institute as well as NetCaucus. Three bills have so far also been introduced.
To understand the implications of the U.S. stepping out of its authoritative role, it is first critical to know what the United States governmnet's function in Internet oversight even is.
In its current state, the system of Internet governance is a bit of a tangled web of organizations and divisions, which together have created a rather successful oversight network. At its center, Internet Corporation for Assigned Names and Numbers (ICANN) controls the global Domain Name System (DNS), or the Internet “phone book.” The U.S. is the most important player in ICANN, although over 100 governments, as well as NGOs and industry representatives, also have input.
Although the U.S. is one of just a few countries where the Internet is completely “free,” meaning without censorship, according to Freedom House’s 2013 global report, some say there is reason for hope yet.
According to Phil Corwin, J.D., founder of Virtualaw, LLC, a public policy consultancy in Washington, D.C., “something better than what we have [now]” could soon replace the U.S.-backed Internet governance system.
This could also mean a great deal for free speech online, said Paul Rosenweig, a visiting fellow at the Heritage Foundation and law professor at George Washington University.
“In effect, the last remaining legal vestige of American control of the network will vanish next year,” he wrote on Lawfare, a national security blog. “Our stewardship of the network will transition to an international non-profit that may, or may not, have the capabilities required. That’s a big deal.”
Phil Corwin represented his clients at “ICANN 50” in London, one of three annual leadership meetings held for ICANN’s Governmental Advisory Committee (GAC), a multi-stakeholder governance board, which includes 111 governments, as well as advisory members, NGOs and industry representatives — including the World Bank and World Trade Organization (WTO).
At the end of the conference on June 26, ICANN announced plans for “an independent accountability mechanism,” which the organization has focused on implementing, along with other measures, and could improve ICANN’s ability to regulate the Internet without US support, according to Corwin.
“The most significant event at ICANN London was the unanimous [ICANN policy board] statement regarding the need for accountability improvements,” Corwin wrote in an email interview.
ICANN, or Internet Corporation for Assigned Names and Numbers, is a nonprofit corporation in California, which oversees the Domain Name System (DNS), and maintains other Internet protocols, allowing people to search for web content, send email and find specific websites with readable web addresses, like “www.google.com,” instead of the lists of numbers that would otherwise appear.
To do this, ICANN coordinates a global system of Internet identifiers — which are used to create a “URL,” or web address — assigning “top-level” domain name endings, like “.com,” “.net.,” and “.org,” for example; also, country domain name extensions, like “.uk,” for the United Kingdom – which together, allow for web users to find and send content online, and are meant to ensure “the continued efficient operation of the Internet.”
For example, ICANN makes sure that two people can’t register for the same domain name, and resolves domain name disputes. It also collects yearly transaction fees for assigning domain names.
Currently, the U.S. Commerce Department oversees ICANN under a contract with Internet Assigned Numbers Authority (IANA), a department within ICANN that actually implements much of ICANN’s authority, and National Telecommunications and Information Administration (NTIA), a Commerce Department agency.
NTIA shocked the global Internet governance community in March when it announced a proposal for transitioning toward this new oversight system – which would effectively end US oversight of IANA, therefore ending the government’s unique authority within ICANN.
If this is the case, and a transition occurs, the U.S. would likely keep its position in ICANN’s leadership as a member of Governmental Advisory Committee, but under the proposed transition, it would simply provide basic input like other members.
Some argue, however, that the government’s oversight with “core” functions of the global Internet infrastructure, as IANA’s responsibilities are called, places too great a responsibility in the hands of one country for many important governing decisions regarding the future of the Internet.
Others point to the fact that the United States rarely, if ever, interferes with ICANN’s daily governance responsibilities. In fact, it created ICANN in 1998 to take “policy-making [sic] power…away from [the US] government and outside its control,” according to well-known digital rights activist and lawyer Lawrence Lessig, who wrote as much in his book, “Code: Version 2.0.”
Many skeptics of NTIA’s proposed transition have also asked, why change the way ICANN is overseen now, if most parts of the Internet are free from censorship?
Those who favor continued U.S. oversight think that authoritarian governments would exert control and censor the Internet if given the chance.
However, because the US has been guaranteed continued stationing of ICANN’s headquarters for the near future, in effect since 2009, the government would likely maintain its territorial jurisdiction over the organization, if not its direct oversight with IANA, after the transition.
This, in theory, would keep American control over roughly half of all domain names globally, including those registered and managed in foreign countries, as is the case now.
An example of this international authority is when in 2012 the U.S. government seized a Canadian domain name, which was both registered and maintained in Canada, because the name was listed on ICANN’s registry in California.
To be successful, a new multi-stakeholder governance system would need to fill the gap that would be left if the government withdrew, as a backstop to prevent corporate censorship, conflicts-of-interest that lead to censorship, and most importantly, government censorship – which the U.S. has avoided accusations of allowing or conducting in its current oversight role.
“I think we have to ask the question, do we think that China, that Russia, that Iran, who have a say in the core functions of the Internet, have the same concern for freedom of speech that we Americans do?” said Rep. Sean Duffy (R-WI), introducing an amendment to keep U.S. oversight of ICANN, to the House of Representatives.
The Duffy Amendment followed the passage of a separate amendment in the house called the Shimkus Amendment. Both proposals would require a review before NTIA’s contract with IANA could be transferred.
Earlier this month, human rights groups, including Human Rights Watch and the ACLU, wrote a letter to Senate Majority Leader Harry Reid (D-NV) opposing the Shimkus legislation.
This would “unnecessarily interfere with” ICANN’s open consultation on the transition process by requiring, at a minimum, a one-year delay for the Government Accountability Office (GAO) review before any transfer, the groups wrote.
“Further, it would damage the reputation of the United States as a champion of multistakeholder [sic] Internet governance and contradict previous bipartisan statements of Congressional support for the multistakeholder governance model,” the letter added.
But defenders of the GAO review think it is a prudent measure and a necessary one in order to move ahead.
"All we are saying is, can we just stop a minute and let the GAO take a look before the U.S. government [makes the move]?" asked Rep. Greg Walden (R-OR), chair of the House Communication and Technology subcommittee, in May.
Following the House amendments, the Senate likewise proposed reviewing any transfer of ICANN’s authority. Senator Mike Johanns (R-NE) proposed an amendment in June – based on a bill called the Dotcom Act of 2014, which he also authored – that would require a quarterly review of the NTIA’s authority within IANA.
What could happen if government oversight does end?
IANA’s contract expires in September 2015, and if a plan is not approved before the deadline, it could alter U.S. involvement in ICANN, effectively end the government’s authority over key parts of the Internet, including how addresses are constructed and maintained, and how disputes get resolved.
For individuals, this could mean an inability to access a desired website, or that it is more likely your domain name will be blocked or seized.
Authoritarian governments could use the transition away from U.S. oversight to ignore accepted open Internet norms, which are currently protected by the government’s implied – and also real – oversight authority, and block certain “top-level” domains, including endings of web addresses, as well as specific websites or apps, critics warn.
ICANN’s State Department Contract could still be extended for 2 years after 2015, and a second option could extend the contract longer for another 2 years until 2019.
Whatever the result, many countries, from Europe to South America, would rather see ICANN and the DNS, outside American control, as the government is increasingly seen as lacking authority for keeping data safe following state surveillance practices revealed by former NSA contractor Edward Snowden — which included documentation of a program called PRISM that allowed warrantless collecting of coded data sent on the Internet.
The White House has committed to handing authority over to the global multi-stakeholder community, at least eventually. There has not yet been a final agreement on the transition, nor has ICANN decided on a system to replace it.
Some are still unsure whether ICANN would continue to guarantee a level of freedom of expression that people are accustomed to with U.S. oversight.
“The Internet is a decentralized network of networks,” Lawrence E. Strickling, assistant secretary for communications and information for NTIA, said at a House subcommittee hearing in April.
Strickling said in his speech that people should not worry about authoritarian governments censoring parts of the Internet without U.S. oversight, adding that rescinding oversight is not “giving away the Internet.”
The Internet is increasingly complex to regulate, he said, but ICANN has responded in turn, improving “accountability, transparency, and technical competence.”
“The U.S. has done a very good job of oversight with ICANN,” Corwin said, and as of now, it has “just enough [oversight] to exercise meaningful authority over ICANN.” Still, he said, the U.S. should show continued leadership in the transition process.