The Future of Internet Governance Should the United States Relinquish Its Authority over ICANN Updated September 1 2016 Congressional Research Service https crsreports congress gov R44022 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Summary Currently the U S government retains limited authority over the Internet’s domain name system primarily through the Internet Assigned Numbers Authority IANA functions contract between the National Telecommunications and Information Administration NTIA and the Internet Corporation for Assigned Names and Numbers ICANN By virtue of the IANA functions contract the NTIA exerts a legacy authority and stewardship over ICANN and arguably has more influence over ICANN and the domain name system DNS than other national governments Currently the IANA functions contract with NTIA expires on September 30 2016 However NTIA has the flexibility to extend the contract for any period through September 2019 On March 14 2014 NTIA announced the intention to transition its stewardship role and procedural authority over key Internet domain name functions to the global Internet multistakeholder community To accomplish this transition NTIA asked ICANN to convene interested global Internet stakeholders to develop a transition proposal NTIA stated that it would not accept any transition proposal that would replace the NTIA role with a government-led or an intergovernmental organization solution For two years Internet stakeholders were engaged in a process to develop a transition proposal that will meet NTIA’s criteria On March 10 2016 the ICANN Board formally accepted the multistakeholder community’s transition plan and transmitted that plan to NTIA for approval On June 9 2016 NTIA announced its determination that the transition plan meets NTIA’s criteria that the plan is approved and that the transition process can proceed Having received notification from ICANN that it had completed implementation tasks associated with the transition plan NTIA notified ICANN on August 16 2016 that barring any significant impediment NTIA intends to allow the IANA functions contract to expire as of October 1 2016 Since NTIA’s announcement of its intention to relinquish its authority over IANA concerns have risen in Congress over the proposed transition Critics worry that relinquishing U S authority over Internet domain names may offer opportunities for either hostile foreign governments or intergovernmental organizations such as the United Nations to gain undue influence over the Internet On the other hand supporters argue that this transition completes the necessary evolution of Internet domain name governance toward the private sector and will ultimately support and strengthen the multistakeholder model of Internet governance Meanwhile legislation has been introduced in the 114th Congresses which seeks to prevent delay or impose conditions or additional scrutiny on the transition Of particular note Section 534 of H R 5393 the FY2017 Commerce Justice Science CJS Appropriations Act would continue to prohibit NTIA from using funds to relinquish its authority over IANA in FY2017 The proposed transition could have a significant impact on the future of Internet governance National governments are recognizing an increasing stake in ICANN and DNS policy decisions especially in cases where Internet DNS policy intersects with national laws and interests related to issues such as intellectual property cybersecurity privacy and Internet freedom How ICANN and the Internet domain name system are ultimately governed may set an important precedent in future policy debates—both domestically and internationally—over how the Internet should be governed and what role governments and intergovernmental organizations should play Congressional Research Service The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Contents Background The Domain Name System and the Role of the U S Government 1 NTIA Intent to Transition Stewardship of the DNS 3 Multistakeholder Process to Develop a Transition Proposal 4 IANA Stewardship Transition 4 Proposal 6 Enhancing ICANN Accountability 6 Proposal 7 Stress Tests 8 Implementation 9 Role of NTIA 9 Role of Congress in the IANA Transition 10 Legislative Activities in the 113th Congress 11 Legislative Activities in the 114th Congress 13 DOTCOM Act 13 FY2016 Department of Commerce Appropriations 14 FY2017 Department of Commerce Appropriations 15 Other Legislation 15 Congressional Hearings 16 Issues for Congress 17 Should the NTIA Relinquish Its Authority 17 Should the Transition Be Delayed 18 mil and gov Top Level Domains 18 Does NTIA Have the Authority to Make the Transfer 19 Evaluating the Transition Plan 19 Concluding Observations 20 Figures Figure 1 Schematic of Process to Develop IANA Transition Proposal 5 Tables Table A-1 Selected Acronyms Used in This Report 21 Appendixes Appendix Acronyms 21 Contacts Author Information 22 Congressional Research Service The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Background The Domain Name System and the Role of the U S Government The Internet is often described as a “network of networks” because it is not a single physical entity but hundreds of thousands of interconnected networks linking hundreds of millions of computers around the world As such the Internet is international decentralized and comprised of networks and infrastructure largely owned and operated by private sector entities 1 Computers connected to the Internet are identified by a unique Internet Protocol IP number that designates their specific location thereby making it possible to send and receive messages and to access information from computers anywhere on the Internet Domain names were created to provide users with a simple location name rather than requiring them to use a long list of numbers The domain name system DNS is the distributed set of databases residing in computers around the world that contain the address numbers mapped to corresponding domain names Those computers called root servers must be coordinated to ensure connectivity across the Internet The U S government has no statutory authority over the DNS However because the Internet evolved from a network infrastructure created by the Department of Defense the U S government originally funded and operated primarily through private contractors many of the key components of the network architecture that enabled the domain name system to function 2 In 1998 with the Internet expanding beyond the academic and governmental spheres the U S government transitioned the management of the DNS to a newly created not-for-profit international organization based in California called the Internet Corporation for Assigned Names and Numbers ICANN 3 ICANN employed and continues to employ a multistakeholder system of governance whereby policy decisions are made by a Board of Directors with input from the various stakeholder groups that comprise the Internet and the domain name system These stakeholders include owners and operators of servers and networks around the world domain name registrars and registries regional IP address allocation organizations standards organizations Internet service providers local and national governments noncommercial stakeholders business users intellectual property interests and others After the 1998 transition the U S government through the Department of Commerce’s National Telecommunications and Information Administration or NTIA retained a degree of authority over ICANN’s management of the DNS and other unique Internet identifiers such as Internet address numbers and protocols With respect to ICANN the U S government first exercised its legacy authority through a Memorandum of Understanding 1998-2006 followed by a Joint Project Agreement 2006-2009 Currently NTIA and ICANN are joint participants in an Affirmation of Commitments AoC agreement in which both parties agree to scrutiny and 1 For more information on how the Internet is governed see CRS Report R42351 Internet Governance and the Domain Name System Issues for Congress by Lennard G Kruger 2 For a history of U S government involvement in the development of the Internet DNS see ICANN Security and Stability Advisory Committee SSAC Overview and History of the IANA Functions August 15 2014 pp 6-10 available at https www icann org en system files files sac-067-en pdf Also see Aaron Shull Paul Twomey and Christopher S Yoo Global Commission on Internet Governance Legal Mechanisms for Governing the Transition of Key Domain Name Functions to the Global Multi-stakeholder Community November 2014 pp 6-7 available at https ourinternet-files s3 amazonaws com publications gcig_paper_no3 pdf 3 For more information on ICANN see CRS Report 97-868 Internet Domain Names Background and Policy Issues by Lennard G Kruger Congressional Research Service R44022 · VERSION 24 · UPDATED 1 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN evaluation by review boards The AoC is voluntary and either ICANN or NTIA can withdraw from the agreement at any time 4 Concurrently a separate contract between the ICANN and NTIA—specifically referred to as the “IANA5 functions contract”—authorizes ICANN to manage the technical underpinnings of the domain name system DNS The IANA functions can be broadly grouped into three categories 1 Number resources—the coordination and allocation of the global pool of IP numbers 2 Protocol Assignments—the management of IP numbering systems in conjunction with Internet standards bodies and 3 Domain names—management of the DNS authoritative root zone file 6 Additionally and intertwined with the IANA functions contract a cooperative agreement between NTIA and Verisign the company that operates the com and net registries authorizes Verisign to manage and maintain the official root zone file that is contained in the Internet’s root servers7 which underlie the functioning of the DNS 8 The IANA functions contract gives the U S government through NTIA the authority to approve various technical functions such as modifying the root zone file which would include for example adding additional generic top level domains gTLDs to the root zone In this narrow sense NTIA’s role is strictly clerical and administrative 9 Policymaking—such as decisions to make changes in the root zone file—is made by ICANN through its internal policy development process Although it has the authority to do so under the IANA functions contract NTIA has never refused to approve any IANA related actions as directed by ICANN However the IANA functions contract while primarily administrative in nature carries broader significance because it has conferred upon the U S government a “stewardship” role over ICANN and the domain name system This stewardship role does not mean that the NTIA controls ICANN or has the authority to approve or disapprove ICANN policy decisions Rather the U S government’s authority over the IANA functions has been viewed by the Internet community as a “backstop” that serves to reassure Internet users that the U S government is prepared and positioned to constitute a check on ICANN under extreme circumstances such as for example fiscal insolvency failure to meet operational obligations or capture or undue influence by a single stakeholder or by outside interests 4 The agreements between NTIA and ICANN are available at http www ntia doc gov page docicann-agreements Internet Assigned Numbers Authority See http www internetassignednumbersauthority org about 6 The authoritative root zone is a globally shared set of data that functions as a central and unified directory that ensures an Internet user will connect with the website that corresponds with the domain name that he or she types into their browser 7 According to the National Research Council “The root zone file defines the DNS For all practical purposes a top level domain and therefore all of its lower-level domains is in the DNS if and only if it is listed in the root zone file Therefore presence in the root determines which DNS domains are available on the Internet ” See National Research Council Committee on Internet Navigation and the Domain Name System Technical Alternatives and Policy Implications Signposts on Cyberspace The Domain Name System and Internet Navigation National Academy Press Washington DC 2005 p 97 8 On August 17 2015 NTIA announced that Verisign and ICANN had developed a proposal for removing NTIA’s administrative role associated with root zone management as part of the IANA stewardship transition See http www ntia doc gov files ntia publications root_zone_administrator_proposal-relatedtoiana_functionsste-final pdf 9 An explanation of NTIA’s role in managing the authoritative root zone file is at http www ntia doc gov files ntia publications ntias_role_root_zone_management_12162014 pdf 5 Congressional Research Service R44022 · VERSION 24 · UPDATED 2 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Meanwhile the U S government continues to participate in the ICANN policy development process through membership in the Governmental Advisory Committee GAC which provides advice to ICANN on issues of public policy especially where there may be an interaction between ICANN’s activities or policies and national laws or international agreements 10 However while all governments have access to membership in the GAC the U S government arguably has had more influence over ICANN and the DNS than other governments by virtue of the IANA functions contract with ICANN NTIA Intent to Transition Stewardship of the DNS On March 14 2014 NTIA announced its intention to transition its stewardship role and procedural authority over key domain name functions to the global Internet multistakeholder community 11 NTIA’s stated intention was that it would let its IANA functions contract with ICANN expire on September 30 2015 if a satisfactory transition could be achieved With NTIA having the option of extending the contract for up to two two-year periods through September 30 2019 NTIA announced on August 17 2015 that it will extend the IANA functions contract through September 30 2016 As a first step NTIA asked ICANN to convene interested global Internet stakeholders to develop a proposal to achieve the transition Specifically NTIA expects ICANN to work collaboratively with parties directly affected by the IANA contract 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 October 2013 many of these groups—specifically the Internet technical organizations responsible for coordination of the Internet infrastructure—had 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 ”12 NTIA has stated that it will not accept any transition proposal that would replace the NTIA role with a government-led or an intergovernmental organization solution In addition NTIA told ICANN that the transition proposal must have broad community support and address the following four principles     support and enhance the multistakeholder model maintain the security stability and resilience 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 10 For more information on the GAC see https gacweb icann org display gacweb Governmental Advisory Committee 11 NTIA Press Release “NTIA Announced Intent to Transition Key Internet Domain Name Functions ” March 14 2014 available at http www ntia doc gov press-release 2014 ntia-announces-intent-transition-key-internet-domainname-functions 12 ICANN “Montevideo Statement on the Future of Internet Cooperation ” October 7 2013 available at https www icann org en news announcements announcement-07oct13-en htm Congressional Research Service R44022 · VERSION 24 · UPDATED 3 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Multistakeholder Process to Develop a Transition Proposal ICANN convened a process through which the multistakeholder community attempted to come to consensus on a transition proposal The process was divided into two separate but related parallel processes 1 IANA Stewardship Transition and 2 Enhancing ICANN Accountability Figure 1 shows a schematic diagram of the two interlinked processes NTIA has stated that it views these two processes as “directly linked” and that “both issues must be addressed before any transition takes place ”13 On March 10 2016 the ICANN Board formally accepted the IANA Stewardship Transition proposal14 and the Enhancing ICANN Accountability report 15 The Board formally transmitted the transition and accountability plans to NTIA for approval IANA Stewardship Transition Based on feedback received from the Internet community at its March 2014 meeting in Singapore ICANN put out for public input and comment a draft proposal of Principles Mechanisms and Process to Develop a Proposal to Transition NTIA’s Stewardship of the IANA Functions 16 Under the draft proposal a steering group was formed “to steward the process in an open transparent inclusive and accountable manner ”17 The steering group was composed of representatives of each ICANN constituency and of parties directly affected by the transition of IANA functions for example Internet standards groups and Internet number resource organizations On June 6 2014 after receiving public comments on the steering group draft proposal ICANN announced the formation of a Coordination Group which was responsible for preparing a transition proposal 18 The IANA Stewardship Transition Coordination Group ICG was composed of 30 individuals representing 13 Internet stakeholder communities 19 On August 27 2014 the ICG released its charter which stated that its mission is “to coordinate the development of a proposal among the communities affected by the IANA functions ”20 13 Testimony of Lawrence Strickling Assistant Secretary for Communications and Information National Telecommunications and Information Administration before the Senate Committee on Commerce Science and Transportation “Preserving the Multistakeholder Model of Internet Governance ” February 25 2015 p 11 available at http www commerce senate gov public a Files Serve File_id 3abbe751-4440-4c5f-83bd-382b38cbdc05 14 ICANN Adopted Board Resolutions “IANA Transition Stewardship Proposal from ICG ” March 10 2016 available at https www icann org en system files files iana-stewardship-transition-proposal-resolutions-exceprts-10mar16en pdf 15 ICANN Adopted Board Resolutions “Proposal from CCWG on Enhancing ICANN Accountability ” March 10 2016 available at https www icann org en system files files ccwg-accountability-proposal-resolutions-exceprts10mar16-en pdf 16 Available at http www icann org en about agreements iana transition draft-proposal-08apr14-en htm 17 Ibid 18 Details on the Coordination Group are available at https www icann org resources pages process-next-steps-201406-06-en# 19 Information on ICG membership is available at https www icann org resources pages icg-members-2014-07-29-en 20 Charter for the IANA Stewardship Transition Coordination Group August 27 2014 available at https www icann org en system files files charter-icg-27aug14-en pdf Congressional Research Service R44022 · VERSION 24 · UPDATED 4 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Figure 1 Schematic of Process to Develop IANA Transition Proposal Source ICANN Notes ICG IANA Stewardship Transition Coordination Group CRISP Consolidated Regional Internet Registries RIR IANA Stewardship Proposal Team CWG Cross Community Working Group on Naming Related Functions CCWG Accountability Cross Community Working Group PEG Public Experts Group The ICG requested a proposal for each of the three primary IANA functions domain namerelated functions numbering and protocol parameters to be developed by the three operational communities associated with each of those primary functions Upon receipt of the three proposals the ICG worked to develop a single consolidated proposal The three proposals break out as follows    Number Resources—developed by the five Regional Internet Registries RIR via the Consolidated RIR IANA Stewardship Proposal Team CRISP Team Protocol Parameters—developed by the Internet Engineering Task Force IETF through the IANAPLAN Working Group IANAPLAN WG Domain Names—developed by the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions CWG-Stewardship While the Number Resources and the Protocol Parameter proposals were completed in January 2015 consensus on a domain name function proposal proved more difficult to reach with the CWG-Stewardship group unable to meet an initial January 2015 deadline This is perhaps due to the fact that both numbering and protocols are currently operated by external groups which already perform these activities under contract with ICANN The domain name IANA function is performed by ICANN itself under contract to NTIA and the question of how to transition away from the NTIA contract with respect to the domain naming function is inherently more complex and controversial Congressional Research Service R44022 · VERSION 24 · UPDATED 5 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN The CWG-Stewardship group was composed of 19 members appointed by chartering organizations and 115 participants who contributed to mailing list conversations and meetings The key question the group grappled with was whether a new organization or entity should be created to oversee the IANA functions contract an external model or whether ICANN itself— subject to enhanced accountability measures—should be given authority over the IANA function an internal model Proposal On March 10 2016 the ICANN Board approved the final IANA Transition Stewardship Proposal The proposal combines the three proposals developed for Numbers Resources Protocol Parameters and Domain Names    Numbers Resources—the numbers community proposed that ICANN continue to serve as the IANA Functions Operator and perform those services under a contract with the five Regional Internet Registries RIRs The numbers community also proposed a contractual Service Level Agreement between the RIRs and the IANA Numbering Service Operator and a Review Committee comprising community representatives from each region to advise the RIRs on the IANA functions operator’s performance and adherence to identified service levels Protocol Parameters—the protocol parameters community proposed to continue to rely on the current system of agreements policies and oversight mechanisms created by the IETF ICANN and IAB for the provisions of the protocols parameters-related IANA functions Domain Names—the domain names community proposed to form a new separate legal entity Post-Transition IANA PTI as an affiliate subsidiary of ICANN that would become the IANA functions operator in contract with ICANN This proposal integrates elements of both the internal and external models 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 The legal jurisdiction in which ICANN resides California is to remain unchanged The proposal includes the creation of a Customer Standing Committee CSC responsible for monitoring the operator’s performance according to the contractual requirements and service level expectations The proposal establishes a multistakeholder IANA Function Review process IFR to conduct review of PTI Enhancing ICANN Accountability In parallel with the IANA stewardship transition process ICANN initiated a separate but related process on how to enhance ICANN’s accountability The purpose of this process was to ensure that ICANN will remain accountable to Internet stakeholders if and when ICANN is no longer subject to the IANA contract with the U S government Specifically the process examined how ICANN’s broader accountability mechanisms should be strengthened to address the potential absence of its historical contractual relationship with the DOC including looking at strengthening existing accountability mechanisms e g the ICANN bylaws and the Affirmation of Commitments Congressional Research Service R44022 · VERSION 24 · UPDATED 6 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN To implement the accountability process ICANN formed a Cross Community Working Group CCWG to develop proposals to enhance ICANN’s accountability toward all stakeholders 21 The CCWG pursued two interrelated Work Streams Work Stream 1 focused on mechanisms enhancing ICANN accountability that must be in place or committed to within the timeframe of the IANA Stewardship Transition Work Stream 2 focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition Membership in the CCWG was open to individuals appointed by the various stakeholder organizations within the ICANN community with decisions made by consensus Additionally the CCWG was open to any interested person as a participant Participants were able to attend and participate in all meetings but were not part of any consensus or decisionmaking process Additionally up to seven advisors selected by a Public Experts Group 22 provided the CCWG with independent advice and research and identified best practices at an early stage of deliberation Other members of the CCWG included an ICANN staff member a past participant in the Accountability and Transparency Review Team s a liaison with the IANA Stewardship Transition Coordination Group ICG and an ICANN Board liaison All of those individuals participated but were not part of the decisionmaking process Proposal The CCWG-Accountability Work Stream 1 proposal was approved by the ICANN Board on March 10 2016 The proposal seeks to enhance ICANN’s accountability by specifying powers for the ICANN community that can be enforced when consensus cannot be reached Specifically CCWG-Accountability proposed the creation of a new entity referred to as the “Empowered Community ” that will act at the direction of the multistakeholder community as constituted by ICANN’s Supporting Organizations and Advisory Committees Under California law the new entity would take the form of a California unincorporated association and be given the role of Sole Designator of ICANN Board Directors Triggered by a petitioning consultation and escalation process the Empowered Community would have the power to         Reject ICANN Budgets IANA Budgets or Strategic Operating Plans Reject changes to ICANN’s Standard Bylaws Approve changes to new Fundamental Bylaws Articles of Incorporation and ICANN’s sale or other disposition of all or substantially all of ICANN’s assets The threshold for Board approval for changing a Fundamental Bylaw is raised from two-thirds to three-fourths Remove an individual ICANN Board Director Recall the entire ICANN Board Initiate a binding Independent Review Process on behalf of the Community Reject ICANN Board decisions relating to reviews of the IANA functions including the triggering of Post-Transition IANA separation Inspect ICANN’s books and records and initiate investigatory audits The CCWG Charter uses the following definition of stakeholder “a person group or organization that has a direct or indirect stake or interest in the organization because it can either affect the organization or be affected by it ” See https www icann org news announcement-2014-11-05-en 22 https www icann org news announcement-2014-08-19-en 21 Congressional Research Service R44022 · VERSION 24 · UPDATED 7 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Also proposed is a revised mission statement for the ICANN Bylaws that clarifies what ICANN does while not changing ICANN’s historic mission an enhanced and binding Independent Review Process IRP with a broader scope reaffirming the IRP’s power to ensure ICANN stays within its mission and enhancements to the Reconsideration Request process Other recommendations include the insertion of a commitment to recognition of human rights incorporating the reviews called for under the Affirmation of Commitments into the ICANN Bylaws and modifying structural reviews to include considerations of supporting organizations’ and advisory committees’ accountability Finally the proposal addressed the role of the Governmental Advisory Committee GAC and how ICANN should consider GAC advice Under the proposal the GAC will participate in the Empowered Community except in matters where the Empowered Community is deciding whether to challenge a board action based on GAC advice GAC formal advice must be reached by full consensus 23 at which point the Board and GAC would try to find a mutually acceptable solution If a mutual agreement cannot be reached the Board can choose not to follow that advice by a vote of at least 60% of Board members The CCWG-Accountability proposal also recommended new language in the Bylaws that would prohibit ICANN from taking any action including actions advised by GAC that is inconsistent with the ICANN Bylaws Stress Tests A critical aspect of the CCWG-Accountability group proposal was designing “stress tests” for each solution or accountability measure that the two work streams developed Stress tests are designed to measure the resistance of the accountability measures to various contingencies The proposal identified 37 specific contingencies that have been consolidated into five categories of stress tests      Financial crisis or insolvency ICANN becomes fiscally insolvent and lacks resources to adequately meet obligations Failure to meet operational expectations ICANN fails to process change or delegation requests to the IANA Root Zones or executes a change of delegation over objections of stakeholders Legal legislative action ICANN is the subject of litigation under existing or future policies legislation or regulation ICANN attempts to delegate a new TLD or redelegate a non-compliant existing TLD Failure of accountability Action by one or more Board members the CEO or staff is contrary to mission or bylaws ICANN is captured by one stakeholder segment and Failure of accountability to external stakeholders ICANN modifies its structure to avoid obligation to external stakeholders ICANN delegates subcontracts or abdicates obligations to a third party ICANN merges with or is acquired by an unaccountable third party 24 A formal objection by any one nation in the GAC would block “full consensus ” Currently GAC decisions are made by consensus but the GAC could conceivably in the future change to a “majority rules” decisionmaking process The accountability proposal would ensure that only a full consensus GAC decision would be considered by the ICANN Board 24 Cross Community Working Group on Enhancing ICANN Accountability CCWG-Accountability “Enhancing ICANN Accountability ” February 11 2015 p 8 available at http singapore52 icann org en schedule wed-ccwg23 Congressional Research Service R44022 · VERSION 24 · UPDATED 8 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN According to the CCWG-Accountability charter stress tests could include an analysis of potential weaknesses and risks an analysis of existing remedies and their robustness a definition of additional remedies or modification of existing remedies and a description of how the proposed solutions would mitigate the risk of contingencies or protect the organization against such contingencies 25 Ultimately any proposed accountability enhancements will be tested against the following questions    Do they make ICANN more susceptible to “capture” or the assertion of undue influence by one stakeholder or group of stakeholders Can any individual or group make use of the redress and review processes in a way that paralyzes the work of ICANN Does any group of stakeholders have the ability to modify its internal procedures in a way that shifts how it interacts among the rest of the stakeholders within ICANN 26 Implementation With the transition plan submitted to NTIA language in the ICANN Bylaws was formulated and modified to incorporate the proposed recommendations On May 27 2016 the ICANN Board formally adopted the revised bylaws 27 On August 12 2016 ICANN notified NTIA that implementation tasks were complete and that “all other tasks in support of the IANA stewardship transition are either in a final review state or awaiting approval which will be complete in advance of September 30 2016 to allow the IANA functions contract to expire ”28 Role of NTIA On August 17 2015 NTIA announced its intention to extend the IANA function contract for one year until September 30 2016 NTIA stated that beyond 2016 they have the option of extending the contract for an additional period of up to three years if needed NTIA also announced that in March 2015 it asked ICANN and Verisign to develop a transition plan for managing the root zone file after the IANA transition Currently NTIA has a cooperative agreement with Verisign which designates NTIA as the Root Zone Administrator Under a proposal developed by ICANN and Verisign the IANA Functions Operator currently ICANN and to be determined under the IANA transition will have administrative authority over Verisign’s operation of the root zone file accountability presentation-ccwg-accountability-11feb15-en 25 Cross Community Working Group CCWG Charter November 3 2014 p 4 available at https community icann org display acctcrosscomm Charter 26 ICANN Response to Question for the Record submitted by Senator Klobuchar Senate Commerce Committee Hearing “Preserving the Multistakeholder Model of Internet Governance ” February 25 2015 available at https www icann org en system files correspondence chehade-to-klobuchar-06apr15-en pdf 27 Approved Board Resolutions Special Meeting of the ICANN Board “Approval of New ICANN Bylaws for IANA Stewardship Transition ” May 27 2016 available at https www icann org resources board-material resolutions-201605-27-en#1 a 28 Letter from Goran Marby President CEO ICANN to Assistant Secretary Strickling NTIA August 12 2016 available at https www icann org en system files correspondence marby-to-strickling-12aug16-en pdf Congressional Research Service R44022 · VERSION 24 · UPDATED 9 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN NTIA had to approve the multistakeholder community proposal in order for the transition to take place ICANN submitted the transition proposal to NTIA on March 10 2016 On March 11 NTIA stated that it “will now begin the process of reviewing the proposal hopefully within 90 days to determine whether it meets the criteria we outlined when we announced the transition ”29 As part of this review NTIA contracted with the Berkman Center at Harvard to provide an independent review of the IANA Stewardship Transition proposal 30 NTIA stated that it planned to gather input from other federal agencies and to be guided by recommendations from the Government Accountability Office 31 On June 9 2016 NTIA issued its IANA Stewardship Transition Proposal Assessment Report 32 The report announced NTIA’s formal determination that the transition proposal meets the criteria set forth when NTIA announced its intention to transition U S government stewardship over IANA Specifically NTIA determined that the proposal supports and enhances the multistakeholder model maintains the security stability and resiliency of the Internet meets the needs and expectations of global customers maintains the openness of the Internet and does not replace NTIA’s role with a government-led or intergovernmental organization solution 33 Having received the August 12 2016 notification from ICANN that it had completed the implementation tasks associated with the IANA transition plan NTIA notified ICANN on August 16 2016 that “barring any significant impediment NTIA intends to allow the IANA functions contract to expire as of October 1 ”34 Role of Congress in the IANA Transition Concerns have arisen in Congress over the proposed transition Some Members have argued that the transition requires additional scrutiny by Congress while others have questioned whether the transition should take place at all While the U S government has no statutory authority over ICANN or the DNS Congress does have legislative and budgetary authority over NTIA which is seeking to relinquish its contractual authority over the IANA functions As such Congress has keenly monitored the progress of the transition primarily through congressional committees with jurisdiction over NTIA These include the House Energy and Commerce Committee and the Senate Commerce Science and Transportation Committee Additionally the House and Senate Appropriations Committees—which determine and control NTIA’s annual budget—could impact NTIA’s ability to relinquish its existing authority over the IANA functions NTIA Administrator Lawrence E Strickling Blog “Reviewing the IANA Transition Proposal ” March 11 2016 available at https www ntia doc gov blog 2016 reviewing-iana-transition-proposal 30 Notice of this contract is available at https www fbo gov index s opportunity mode form tab core id 9afdedb295be525d70228ba5eb9bb410 _cview 0 31 Government Accountability Office Internet Management Structured Evaluation Could Help Assess Proposed Transition of Key Domain Name and Other Technical Functions GAO-15-642 August 2015 60 pp available at http www gao gov assets 680 672055 pdf 32 Available at https www ntia doc gov report 2016 iana-stewardship-transition-proposal-assessment-report 33 NTIA Press Release “NTIA Finds IANA Stewardship Transition Proposal Meets Criteria to Complete Privatization ” June 9 2016 available at NTIA Finds IANA Stewardship Transition Proposal Meets Criteria to Complete Privatization 34 Letter from NTIA Assistant Secretary Strickling to ICANN President and CEO Goran Marby August 16 2016 available at https www ntia doc gov files ntia publications 20160816marby pdf 29 Congressional Research Service R44022 · VERSION 24 · UPDATED 10 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Legislative Activities in the 113th Congress On March 27 2014 Representative Shimkus introduced H R 4342 the Domain Openness Through Continued Oversight Matters DOTCOM Act H R 4342 would have prohibited the NTIA from relinquishing responsibility over the Internet domain name system until GAO submits to Congress a report on the role of the NTIA with respect to such system The report would have included a discussion and analysis of the advantages and disadvantages of the change and addressed the national security concerns raised by relinquishing U S oversight It would also have required GAO to provide a definition of the term “multistakeholder model” as used by NTIA with respect to Internet policymaking and governance H R 4342 was referred to the House Energy and Commerce Committee On April 2 2014 the Subcommittee on Communications and Technology held a hearing on the DOTCOM Act 35 H R 4342 was approved by the House Energy and Commerce Committee on May 8 2014 Subsequently on June 5 2014 the House Energy and Commerce Committee requested that the GAO examine the Administration’s proposal to transition NTIA’s current authority over IANA to the multistakeholder Internet community 36 On August 15 2015 GAO released a report finding that NTIA had not yet developed a formal framework for evaluating the transition plan GAO recommended that NTIA review existing frameworks for evaluation to help evaluate and document whether and how the transition proposal meets NTIA’s core goals 37 On May 22 2014 the text of the DOTCOM Act was offered by Representative Shimkus as an amendment to H R 4435 the National Defense Authorization Act for FY2015 During House consideration of H R 4435 the amendment was agreed to by a vote of 245-177 H R 4435 was passed by the House on May 22 2014 The House Armed Services bill report accompanying H R 4435 H Rept 113-446 stated the committee’s belief that any new Internet governance structure should include protections for the Department of Defense-controlled mil generic top level domain and its associated Internet protocol numbers The committee also supported maintaining separation between the policymaking and technical operation of root-zone management functions On June 2 2014 the Senate Armed Services Committee reported S 2410 its version of the FY2015 National Defense Authorization Act Section 1646 of S 2410 “Sense of Congress on the Future of the Internet and the mil Top-Level Domain” stated that it is the sense of Congress that the Secretary of Defense should advise the President to transfer the remaining role of the United States Government in the functions of the Internet Assigned Numbers Authority to a global multi-stakeholder community only if the President is confident that the ‘ MIL’ top-level domain and the Internet Protocol address numbers used exclusively by the Department of Defense for national security will remain exclusively used by the Department of Defense Section 1646 also directed DOD to take “all necessary steps to sustain the successful stewardship and good standing of the Internet root zone servers managed by components of the Department of Defense ” In the report accompanying S 2410 S Rept 113-176 the committee urged DOD to seek an agreement through the IANA transition process or in parallel to it between the United States and the Internet Corporation for Assigned Names and Numbers and the rest 35 Hearing before the House Energy and Commerce Committee Subcommittee on Communications and Technology “Ensuring the Security Stability Resilience and Freedom of the Global Internet ” April 2 2014 available at http energycommerce house gov hearing ensuring-security-stability-resilience-and-freedom-global-internet 36 See http energycommerce house gov sites republicans energycommerce house gov files letters 20140605GAO pdf 37 Government Accountability Office Internet Management Structured Evaluation Could Help Assess Proposed Transition of Key Domain Name and Other Technical Functions GAO-15-642 August 2015 60 pages available at http www gao gov assets 680 672055 pdf Congressional Research Service R44022 · VERSION 24 · UPDATED 11 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN of the global Internet stakeholders that the mil domain will continue to be afforded the same generic top level domain status after the transition that it has always enjoyed on a par with all other country-specific domains The Carl Levin and Howard P “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 was signed by the President on December 16 2014 P L 113-235 The enacted law does not contain the DOTCOM Act provision contained in the House-passed version Section 1639 of P L 113-235 “Sense of Congress on the Future of the Internet and the mil Top-Level Domain” states it is the sense of Congress that the Secretary of Defense should support the IANA transfer only if assurances are provided for the protection of the current status of legacy top-level domain names and Internet Protocol address numbers particularly those used by the Department of Defense and the components of the United States Government for national security purposes mechanisms are institutionalized to uphold and protect consensus-based decision making in the multi-stakeholder approach and existing stress-testing scenarios of the accountability process of the multi-stakeholder model can be confidently shown to work transparently securely and efficiently to maintain a free open and resilient Internet It is also the sense of Congress that the Secretary of Defense should “take all necessary steps to sustain the successful stewardship and good standing of the Internet root zone servers managed by components of the Department of Defense including active participation review and analysis for transition planning documents and accountability stress testing ” On May 8 2014 the House Appropriations Committee approved H R 4660 the FY2015 Commerce Justice Science CJS Appropriations Act which appropriates funds for DOC and NTIA The bill report H Rept 113-448 stated that in order that the transition is more fully considered by Congress the committee’s recommendation for NTIA does not include any funds to carry out the transition and that the committee expects that NTIA will maintain the existing nocost contract with ICANN throughout FY2015 During House consideration of H R 4660 an amendment offered by Representative Duffy was adopted on May 30 2014 by recorded vote 229-178 which stated that Section 562 “ n one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions ” H R 4660 was subsequently passed by the House on May 30 2014 On June 5 2014 the Senate Appropriations Committee reported its version of the FY2015 Commerce Justice Science and Related Agencies Appropriations Act S 2437 In the bill report S Rept 113-181 the committee directed NTIA to   conduct a thorough review and analysis of any proposed transition of the IANA contract to ensure that ICANN has in place an NTIA-approved multistakeholder oversight plan that is insulated from foreign government and intergovernmental control and report quarterly to the committee on all aspects of the privatization process and inform the committee as well as the Committee on Commerce Science and Transportation not less than seven days in advance of any decision with respect to a successor contract The committee also expressed its concern that NTIA has not been a strong enough advocate for U S businesses and consumers through its participation in ICANN’s Governmental Advisory Committee GAC and stated that it awaits “the past due report on NTIA’s plans for greater Congressional Research Service R44022 · VERSION 24 · UPDATED 12 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN involvement in the GAC and the efforts it is undertaking to protect U S consumers companies and intellectual property ” The Consolidated and Further Continuing Appropriations Act 2015 P L 113-235 was signed by the President on December 16 2014 Section 540 provides that during FY2015 NTIA may not use any appropriated funds to relinquish its responsibility with respect to Internet domain name system functions including its responsibility with respect to the authoritative root zone file and the IANA functions The prohibition on funding for NTIA’s IANA transition activities expires on September 30 2015 Additionally the Explanatory Statement accompanying P L 113-235 reiterates House and Senate language regarding ICANN and IANA matters and modifies the Senate language by directing NTIA “to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA’s role with respect to ICANN or IANA activities ” The Explanatory Statement also directs NTIA to submit a report to the House and Senate Committees on Appropriations within 45 days of enactment of P L 113-235 regarding “any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States ” Other legislation addressing the proposed transition included    H R 4367 Internet Stewardship Act of 2014 introduced by Representative Mike Kelly on April 2 2014 which would have prohibited NTIA from relinquishing its DNS responsibilities unless permitted by statute H R 4398 Global Internet Freedom Act of 2014 introduced by Representative Duffy on April 4 2014 which would have prohibited NTIA from relinquishing its authority over the IANA functions and H R 5737 Defending Internet Freedom Act of 2014 introduced by Representative Mike Kelly on November 19 2014 which would have prohibited NTIA from relinquishing its responsibilities over domain name functions unless it certifies that the transition proposal meets certain specified criteria H R 4367 H R 4398 and H R 5737 were referred to the Committee on Energy and Commerce None of those bills were enacted by the 113th Congress Meanwhile the House Judiciary Committee Subcommittee on Courts Intellectual Property and the Internet held a hearing on April 10 2014 that examined the proposed transition 38 Legislative Activities in the 114th Congress DOTCOM Act The DOTCOM Act of the 113th Congress was reintroduced into the 114th Congress by Representative Shimkus as H R 805 on February 5 2015 As introduced the DOTCOM Act of 2015 would have prohibited NTIA from relinquishing responsibility over the Internet domain name system until GAO submitted a report to Congress examining the implications of the proposed transfer H R 805 would have directed GAO to issue the report no later than one year after NTIA received a transition proposal On June 17 2015 the House Committee on Energy 38 House Subcommittee on Courts Intellectual Property and the Internet Committee on the Judiciary Hearing “Should the Department of Commerce Relinquish Direct Oversight over ICANN ” April 10 2014 testimony available at http judiciary house gov index cfm hearings ID 027833A0-0028-42E2-A14B-B9C8BA2576A6 Congressional Research Service R44022 · VERSION 24 · UPDATED 13 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN and Commerce approved an amended DOTCOM Act The amended version of H R 805 reflected a bipartisan agreement and was approved unanimously by voice vote On June 23 2015 H R 805 was passed by the House 378-25 under suspension of the rules H R 805 as passed by the House does not permit NTIA’s authority over the IANA function “to terminate lapse be cancelled or otherwise cease to be in effect” until 30 legislative days after NTIA submits a report to Congress on the final IANA transition proposal Specifically the report must contain the final transition proposal and a certification by NTIA that the proposal      supports and enhances the multistakeholder model of Internet governance maintains the security stability and resiliency of the Internet domain name system meets the needs and expectations of the global customers and partners of IANA services maintains the openness of the Internet and does not replace the role of NTIA with a government-led or intergovernmental organization solution H R 805 also requires NTIA to certify that the required changes to ICANN’s bylaws contained in the transition proposal have been adopted by ICANN S 1551 the Senate companion version of the DOTCOM Act of 2015 was introduced on June 11 2015 by Senator Thune The language of S 1551 is virtually identical to H R 805 as approved by the House Committee on Energy and Commerce S 1551 was referred to the Senate Committee on Commerce Science and Transportation FY2016 Department of Commerce Appropriations On June 3 2015 the House passed H R 2578 the FY2016 Commerce Justice Science CJS Appropriations Act which appropriated funds for DOC and NTIA Section 536 of H R 2578 stated that “ n one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions ” On June 16 2015 the Senate Appropriations Committee reported its version of the FY2016 Commerce Justice Science and Related Agencies Appropriations Act In the bill report S Rept 114-66 the committee directed NTIA to “continue quarterly reports to the committee on all aspects of the transition process and further directs NTIA to inform the Committee and the Senate Committee on Commerce Science and Transportation not less than 45 days in advance of any decision with respect to a successor contract ” The committee also stated that it “continues to be concerned about this process and supports the continued stewardship role of the United States over the domain name system in order to ensure the security of the gov and mil domains and to protect the freedom of speech and expression internationally ” The Consolidated Appropriations Act 2016 P L 114-113 prevents NTIA from relinquishing its contractual control over IANA in FY2016 Section 539 of P L 114-113 states the following a None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2016 with respect to Internet domain name system functions including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions Congressional Research Service R44022 · VERSION 24 · UPDATED 14 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN b Not withstanding any other law subsection a of this section shall not apply in fiscal year 2017 FY2017 Department of Commerce Appropriations On April 21 2016 the Senate Appropriations Committee reported its version of the FY2017 Commerce Justice Science and Related Agencies Appropriations Act S 2837 The bill report S Rept 114-239 expressed the committee’s continued concern about the proposed IANA transition and the security of the gov and mil domains The committee directed NTIA to continue quarterly reports to the committee on all aspects of the transition process and further directed NTIA to inform the committee and the Senate Committee on Commerce Science and Transportation not less than 45 days in advance of any decision with respect to a successor IANA contract On May 24 2016 the House Appropriations Committee approved the FY2017 Commerce Justice Science CJS Appropriations act H R 5393 The committee continued seeking to prohibit NTIA from relinquishing authority over IANA in FY2017 Section 534 stated that for FY2017 n one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions The bill report H Rept 114-605 stated The Committee remains concerned by NTIA’s intent to transition certain Internet domain name functions to the global multistakeholder community Any such transition represents a significant public policy change and should be preceded by an open and transparent process In order for this issue to be considered more fully by the Congress the Committee includes section 534 prohibiting funding for the transition Other Legislation S 3034 the Protecting Internet Freedom Act was introduced by Senator Cruz on June 8 2016 The legislation would prohibit NTIA from relinquishing its authority over the IANA function and the root zone file unless Congress enacts a federal statute which expressly grants NTIA such authority The bill also requires that no later than 60 days after enactment NTIA shall provide to Congress a written certification that the U S government has secured sole ownership of the gov and mil top level domains and that NTIA has entered into a contract with ICANN ensuring that the U S government has exclusive control and use of the mil and gov domains in perpetuity On June 7 2016 Senator Cruz submitted language of the Protecting Internet Freedom Act as an amendment S Amdt 4486 to the FY2017 National Defense Authorization Act S 2943 H R 5418 the companion House version of the Protecting Internet Freedom Act was introduced by Representative Duffy on June 9 2016 Other introduced legislation that addresses the proposed IANA transition includes   H R 355 Global Internet Freedom Act of 2015 introduced by Representative Duffy on January 14 2015 which would prohibit NTIA from relinquishing its authority over the IANA functions H R 2251 Defending Internet Freedom Act of 2015 introduced by Representative Mike Kelly on May 15 2015 which would prohibit NTIA from relinquishing its responsibilities over domain name functions and the IANA Congressional Research Service R44022 · VERSION 24 · UPDATED 15 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN   function unless it certifies that the transition proposal meets certain specified criteria H R 5329 Securing America’s Internet Domains Act of 2016 introduced by Representative Kelly of Pennsylvania on May 25 2016 which would require NTIA to extend the IANA functions contract unless it certifies that the United States government has secured sole ownership of the gov and mil top level domains and that it has entered into a contract with ICANN that provides the United States with exclusive control and use of those domains in perpetuity S Res 71—designating the week of February 8 through February 14 2015 as “Internet Governance Awareness Week”—was introduced by Senator Hatch on February 5 2015 S Res 71 seeks to increase public awareness regarding NTIA’s proposed transition encourage public education about the importance of the transition process and call the attention of the participants at the ICANN meeting in Singapore to the importance of designing accountability and governance reforms to best prepare ICANN for executing the responsibilities that it may receive under any transition of the stewardship of the IANA functions S Res 71 was passed by the Senate on February 5 2015 Congressional Hearings As part of its continuing oversight over NTIA and the domain name system Congress has held multiple hearings on the proposed IANA transition and on ICANN’s management of the domain name system      On February 25 2015 the Senate Committee on Commerce Science and Transportation held a hearing entitled “Preserving the Multistakeholder Model of Internet Governance ”39 On May 13 2015 the House Committee on Energy and Commerce Subcommittee on Communications and Technology held a hearing entitled “Stakeholder Perspectives on the IANA Transition ”40 On May 13 2015 the House Committee on the Judiciary Subcommittee on Courts Intellectual Property and the Internet held a hearing entitled “Stakeholder Perspectives on ICANN The Sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation ”41 On July 8 2015 the House Committee on Energy and Commerce Subcommittee on Communications and Technology held a hearing entitled “Internet Governance Progress After ICANN 53 ”42 On March 17 2016 the House Committee on Energy and Commerce Subcommittee on Communications and Technology held a hearing entitled “Privatizing the Internet Assigned Number Authority ”43 39 Testimony available at http www commerce senate gov public index cfm p Hearings Testimony available at http energycommerce house gov hearing stakeholder-perspectives-iana-transition 41 Testimony available at http judiciary house gov index cfm hearings ID 7E5AF16E-B1F8-45B8-803B9E389A9B745E 42 Testimony available at http energycommerce house gov hearing internet-governance-progress-after-icann-53 43 Testimony available at https energycommerce house gov hearings-and-votes hearings privatizing-internet-assignednumber-authority 40 Congressional Research Service R44022 · VERSION 24 · UPDATED 16 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN  On May 24 2016 the Senate Committee on Commerce Science and Transportation held a hearing entitled “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority ”44 Issues for Congress If the transition occurs and NTIA relinquishes its authority over the IANA functions the U S government through NTIA will continue to participate in ICANN through the Governmental Advisory Committee However in a post-transition environment the U S government both the executive branch and Congress will arguably have less authority and influence over ICANN and the DNS than it currently has The key issue is should the NTIA relinquish its authority and if so should NTIA relinquish its authority on September 30 2016 or should that deadline be extended Further what organizational structures and safeguards should be in place within the multistakeholder transition plan to ensure that the domain name system remains stable efficient and free from the disproportionate influence of intergovernmental entities such as the United Nations as well as from other governments who may be hostile to U S interests Should the NTIA Relinquish Its Authority Supporters of the transition45 argue that by transferring its remaining authority over ICANN and the DNS to the global Internet community the U S government will bolster its continuing support for the multistakeholder model of Internet governance and that this will enable the United States to more effectively argue and work against proposals for intergovernmental control over the Internet The argument follows that if NTIA does not relinquish authority over the IANA functions the United States will continue to be in the paradoxical and problematic position of opposing moves in intergovernmental fora to increase the power of governments in governing the Internet while at the same time maintaining its unilateral authority over the Internet DNS by virtue of the IANA contract Supporters of the transition also point out that the U S government and Internet stakeholders have from the inception of ICANN envisioned that U S authority over IANA functions would be temporary and that the DNS would eventually be completely privatized 46 According to NTIA this transition is now possible given that “ICANN as an organization has matured and taken steps in recent years to improve its accountability and transparency and its technical competence ”47 Those opposed skeptical or highly cautious about the transition48 point out that NTIA’s role has served as a necessary “backstop” to ICANN which has given Internet stakeholders confidence that the integrity and stability of the DNS is being sufficiently overseen Critics assert that in the 44 Testimony available at http www commerce senate gov public index cfm hearings ID 418B1D81-1F0B-4E09BB71-A98FBABE42B9 45 ICANN “Endorsements of the IANA Globalization Process ” March 18 2014 available at https www icann org en about agreements iana globalization-endorsements-18mar14-en pdf 46 The Commerce Department’s June 10 1998 Statement of Policy stated that the U S government “is committed to a transition that will allow the private sector to take leadership for DNS management ” Available at http www ntia doc gov legacy ntiahome domainname 6_5_98dns htm 47 NTIA Press Release “NTIA Announced Intent to Transition Key Internet Domain Name Functions ” March 14 2014 48 See for example Atkinson Rob “U S Giving Up Its Internet ‘Bodyguard’ Role ” March 17 2014 available at http www ideaslaboratory com 2014 03 17 u-s-giving-up-its-internet-bodyguard-role and Nagesh Gauthem Wall Street Journal “U S Plan for Web Faces Credibility Issue ” March 18 2014 Congressional Research Service R44022 · VERSION 24 · UPDATED 17 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN wake of the Edward Snowden NSA revelations foreign governments might gain more support internationally in their continuing attempts to exert intergovernmental control over the Internet and that any added intergovernmental influence over the Internet and the DNS would be that much more detrimental to the interests of the United States if NTIA’s authority over ICANN and the DNS were to no longer exist Another concern regards the development of the transition plan and a new international multistakeholder entity that would provide some level of stewardship over the DNS Critics are concerned about the risks of foreign governments—particularly repressive regimes that favor censorship of the Internet—gaining influence over the DNS through the transition to a new Internet governance mechanism that no longer is subject to U S government oversight 49 Should the Transition Be Delayed While not necessarily opposing the transition some have suggested that the transition should be delayed and that NTIA’s IANA contract with ICANN should be extended past September 30 2016 Proponents of a delay argue that once the transition takes place it is irreversible and that it would be prudent to temporarily maintain existing U S government authority over IANA and ICANN to ensure that ICANN’s new governance structure is accountable robust functional and resistant to undue influence by governments Proponents of a delay also argue that important issues such as ICANN’s jurisdiction and how ICANN will address human rights are still being developed under the Work Stream 2 activities of the Enhancing Accountability activity and that NTIA’s authority should remain in place until those issues also are decided 50 Opponents of a delay argue that the multistakeholder community after two years of work in developing the transition plan has reached consensus agreement and is expecting the transition to take place on September 30 2016 A delay they argue would send a message to the international community that the United States government is not serious about the transition and this perception would weaken the multistakeholder system while emboldening and strengthening the influence of foreign governments who advocate for moving authority over the domain name system into an intergovernmental forum such as the United Nations 51 mil and gov Top Level Domains Dating back to the early days of the Internet the U S government has had exclusive legacy control over the mil and gov top level domains The mil domain is administered by the Department of Defense Network Information Center and is reserved solely for the use of U S military entities The gov domain is administered by the General Services Administration and is available to federal state local and tribal governmental entities There exists no contract between For example as emblematic of their concerns critics have raised questions concerning ICANN’s relationship with the Chinese government See letter from Senators Cruz Lankford and Lee to Stephen D Crocker Chairman of the ICANN Board March 3 2016 available at https www icann org en system files correspondence cruz-et-al-tocrocker-03mar16-en pdf 50 See letter from Senators Rubio Johnson Blunt Heller and Sullivan to Lawrence E Strickling Assistant Secretary for Communications and Information NTIA May 24 2016 available at https www rubio senate gov public index cfm press-releases ID B4708E5E-94D3-4D99-983E-863D35AC585E Also see testimony of Brett D Schaefer Heritage Foundation before the Senate Committee on Commerce Science and Transportation Hearing “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority ” May 24 2016 51 See for example testimonies of Steve DelBianco Executive Director NetChoice and Andrew Sullivan Chair Internet Architecture Board before the Senate Committee on Commerce Science and Transportation Hearing “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority ” May 24 2016 49 Congressional Research Service R44022 · VERSION 24 · UPDATED 18 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN ICANN and the U S government that confers U S government ownership over the mil and gov domains At issue is whether the transition could potentially have an impact on continued U S government control of the mil and gov domains In a pair of June 2016 letters NTIA requested and ICANN agreed to take no action to redelegate U S government administered domains such as mil and gov without first obtaining express written approval from NTIA 52 However some argue that a legally binding contract should be in place to ensure sole U S ownership control and use of the mil and gov domains in perpetuity 53 Does NTIA Have the Authority to Make the Transfer Opponents of the transition argue that NTIA’s relinquishing of its authority over the IANA contract constitutes a transfer of government property and that the U S Constitution states that only Congress has the power to transfer government property 54 Therefore the transition can only be legal if Congress passes a law authorizing the transfer NTIA has disputed this argument stating that no government property or assets are involved in the IANA contract and “ j ust as federal agencies can enter into contracts they need to fulfill their missions without specific legislative authority federal agencies can discontinue obtaining such services when they no longer need them ”55 On September 22 2015 the Chairmen of the House and Senate Judiciary Committees Representative Goodlatte and Senator Grassley Senator Cruz and Representative Issa sent a letter56 requesting that GAO examine three questions would the termination of NTIA’s contract with ICANN cause government property of any kind to be transferred to ICANN is the root zone file or other related or similar materials or information U S government property and if so does NTIA have the authority to transfer the root zone file or other related materials or information to a non-federal entity Evaluating the Transition Plan NTIA has evaluated the transition plan and has determined that it has met the criteria NTIA set when it announced the beginning of the transition process in 2014 In its evaluation NTIA gathered input from other federal agencies and was guided by recommendations of the Government Accountability Office GAO The GAO recommendations were provided in the 52 Letters available at https www ntia doc gov page exchange-letters-us-government-administered-tlds According to NTIA “The operation of and responsibility for mil and gov are not impacted by this transition as they are not part of the IANA functions contract or related root zone management responsibilities Further per the policies procedures and practices in place mil and gov cannot be transferred without explicit agreement first from the current administrators of those domains – namely the U S government ” See NTIA “Q A on IANA Stewardship Transition ” June 9 2016 available at https www ntia doc gov other-publication 2016 q-and-iana-stewardship-transition 53 Testimony of Brett D Schaefer Heritage Foundation before the Senate Committee on Commerce Science and Transportation Hearing “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority ” May 24 2016 pp 7-8 54 Testimony of Richard Manning Americans for Limited Government before the Senate Committee on Commerce Science and Transportation Hearing “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority ” May 24 2016 pp 3-5 The testimony also raises issues of antitrust implications of the transition and whether NTIA is violating the FY2014 FY2015 and FY2016 Congressional appropriations ban on NTIA spending funds to complete the transition 55 Letter from Lawrence E Strickling Assistant Secretary for Communications and Information NTIA to the Honorable Darrell Issa April 28 2014 p 4 available at http getliberty org wp-content uploads 2015 01 NTIA_Letter_to_Rep-_Issa_4-28-14 pdf 56 Available at https www icann org en system files correspondence cruz-et-al-to-chehade-04feb16-en pdf Congressional Research Service R44022 · VERSION 24 · UPDATED 19 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN August 2015 GAO report Structured Evaluation Could Help Assess Proposed Transition of Key Domain Name and Other Technical Functions GAO identified two frameworks or methods of evaluation that NTIA could consider in its assessment of the transition plan These are the Committee of Sponsoring Organizations of the Treadway Commission Internal Control— Integrated Framework COSO framework and the International Organization for Standardization’s quality management principles ISO quality management principles 57 Congress is assessing NTIA’s evaluation of the transition plan and evaluating the transition plan itself A key issue for Congress will be whether—in the absence of NTIA’s stewardship role—the plan ensures ICANN’s accountability to the multistakeholder community and whether the new organizational structures that are put in place ensure that ICANN and the domain name system cannot be unduly influenced by foreign governments and intergovernmental organizations such as the United Nations Another issue is whether ICANN and the multistakeholder community will be able to adequately assess test and implement the transition recommendations before NTIA’s contract with IANA is relinquished 58 Concluding Observations The future of how ICANN and the DNS will be governed is highly relevant to the broader question of how the Internet should be governed While it is true that ICANN’s jurisdiction is limited to the technical underpinnings of the Internet unique Internet identifiers such as domain names and addresses it is also true that ICANN policy decisions such as new gTLDs can affect other areas of Internet policy such as intellectual property cybersecurity privacy and Internet freedom As the Internet expands and becomes more pervasive throughout the world in all aspects of modern society the question of how it should be governed becomes more pressing with national governments recognizing an increasing stake in ICANN policy decisions especially in cases where Internet DNS policy intersects with national laws and interests ICANN is viewed by many as a ground-breaking example of multistakeholder governance While ICANN does not “control” the Internet how it is ultimately governed may set an important precedent in future policy debates—both domestically and internationally—over how the Internet might be governed and what role governments and intergovernmental organizations should play 57 Government Accountability Office Internet Management Structured Evaluation Could Help Assess Proposed Transition of Key Domain Name and Other Technical Functions GAO-15-642 August 2015 pp 41-46 58 See Brett D Schaefer and Paul Rosenzweig The Heritage Foundation “Privatizing the Internet Assigned Number Authority ” Statement for the Record for the Subcommittee on Communications and Technology House Energy and Commerce Committee March 17 2016 available at http docs house gov meetings IF IF16 20160317 104682 HHRG-114-IF16-20160317-SD003 pdf The authors recommend a two-year extension of the NTIA-IANA contract which would “allow ICANN to operate under the new structure for a period of time to verify that unforeseen complications and problems do not arise while retaining the ability to reassert the historical NTIA relationship if unforeseen complications arise ” Congressional Research Service R44022 · VERSION 24 · UPDATED 20 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN Appendix Acronyms Table A-1 Selected Acronyms Used in This Report AoC Affirmation of Commitments CWG Cross Community Working Group on Naming Related Functions CCWG Accountability Cross Community Working Group DNS domain name system DOC Department of Commerce DOD Department of Defense GAC Governmental Advisory Committee GAO Government Accountability Office gTLD generic top level domain IAB Internet Architecture Board IANA Internet Assigned Numbers Authority ICANN Internet Corporation for Assigned Names and Numbers ICG IANA Stewardship Transition Coordination Group IETF Internet Engineering Task Force IP Congressional Research Service Internet protocol ISOC Internet Society NTIA National Telecommunications Information Administration PEG Public Experts Group PTI post-transition IANA R44022 · VERSION 24 · UPDATED 21 The Future of Internet Governance Should the U S Relinquish Its Authority over ICANN RIRs Regional Internet Registries Author Information Lennard G Kruger Specialist in Science and Technology Policy Disclaimer This document was prepared by the Congressional Research Service CRS CRS serves as nonpartisan shared staff to congressional committees and Members of Congress It operates solely at the behest of and under the direction of Congress Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role CRS Reports as a work of the United States Government are not subject to copyright protection in the United States Any CRS Report may be reproduced and distributed in its entirety without permission from CRS However as a CRS Report may include copyrighted images or material from a third party you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material Congressional Research Service R44022 · VERSION 24 · UPDATED 22