Pranesh:
I've read your piece. I note that neither it, nor your response to my message below, justifies your argument that the transition is "meaningless" unless it changes U.S. jurisdiction.
The transition as proposed would eliminate direct USG authority over all root zone changes, and end the IANA contract which has provided direct political leverage of the US government over ICANN. These changes eliminate the two most direct forms of USG authority over ICANN and DNS. We would also create important new accountability improvements in ICANN's corporate governance.
Please respond: are you telling me you prefer the status quo to the transition plan? Or do you think the transition plan is an improvement?
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
> -----Original Message-----
> From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf Of
> Pranesh Prakash
> Sent: Thursday, June 30, 2016 11:56 AM
> To: [log in to unmask]
> Subject: Re: Jurisdiction: The Taboo Topic at ICANN
>
> Dear Milton and Matthew,
> If you read my piece, I am clear that change of jurisdiction was *not* the
> NTIA's goal. In fact, they opposed change of jurisdiction of incorporation of
> ICANN or PTI.
>
> So while that might possibly be key point that is forgotten, overlooked, or
> ignored, quite clearly I haven't done so.
>
> Regards,
> Pranesh
>
> Matthew Shears <[log in to unmask]> [2016-06-30 10:07:16 +0300]:
> > + 1
> >
> > Milton highlights a key point that is often forgotten, overlooked or
> > ignored: "The purpose of the transition was to eliminate U.S.
> > governments contractual control of ICANN and the US government's
> > authority over all root zone changes. That - and not a change of
> > jurisdiction per se - was the goal."
> >
> > Matthew
> >
> >
> > On 6/29/2016 6:51 PM, Mueller, Milton L wrote:
> >> Pranesh
> >> I am very willing to discuss jurisdiction and have volunteered for
> >> the
> >> WS2 group that will discuss it. However, you are completely out of
> >> touch with reality if you think any major change is going to happen
> >> "before the transition."
> >> The proposal before the NTIA retains ICANN's status as a California
> >> Corporation and indeed creates a new California Corp. to handle PTI.
> >> I disagree with your assertion that the transition is "meaningless"
> >> unless the legal jurisdiction of ICANN's incorporation is changed. I
> >> don't think you can justify that statement but for dialogue purposes
> >> I encourage you to try.
> >>
> >> The purpose of the transition was to eliminate U.S. governments
> >> contractual control of ICANN and the US government's authority over
> >> all root zone changes.
> >> That - and not a change of jurisdiction per se - was the goal. Those
> >> are important objectives, and the current proposal before us achieves
> >> them. If you do think it is meaningless then you are, objectively,
> >> taking the side of Senator Cruz and other U.S. nationalist
> >> Republicans who want to stop the transition and you will not get a
> >> movement away from U.S. jurisdiction you will get the status quo, which is
> worse.
> >>
> >> The Montevideo statement did not call for a change of jurisdiction,
> >> either, but rather "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."
> >>
> >> --MM
> >>
> >>> -----Original Message-----
> >>> From: NCSG-Discuss [mailto:[log in to unmask]] On
> Behalf
> >>> Of Pranesh Prakash
> >>> Sent: Wednesday, June 29, 2016 5:18 AM
> >>> To: [log in to unmask]
> >>> Subject: Jurisdiction: The Taboo Topic at ICANN
> >>>
> >>> Dear all,
> >>> In CIS's submissions to the WSIS process, to the ICG, to the
> >>> CCWG-Acct, we have raised the multi-faceted issue of jurisdiction,
> >>> and why dealing with that now (before the transition) is important.
> >>> Given that it hasn't been dealt with as part of WS1, I believe the
> >>> "IANA transition"
> >>> ends up being meaningless in terms of what it set out to achieve,
> >>> and what were the goals laid down in the Montevideo Statement and in
> >>> the NETmundial Statement.
> >>>
> >>> I believe civil society actors ought to discuss our positions on the
> >>> topic of jurisdiction, which frankly hasn't really happened on this
> >>> list.
> >>>
> >>> To instigate debate, I've written a long-ish piece on the topic:
> >>> http://cis-india.org/internet-governance/blog/jurisdiction-the-taboo
> >>> -topic-
> >>>
> >>> at-icann
> >>>
> >>> Regards,
> >>> Pranesh
> >>>
> >>>
> >>>
> >>> Jurisdiction: The Taboo Topic at ICANN
> >>> ======================================
> >>>
> >>> In March 2014, the [US government announced] that they were going to
> >>> end the contract they have with ICANN to run the [Internet Assigned
> >>> Numbers Authority] (IANA), and hand over control to the “global
> >>> multistakeholder community”. They insisted that the plan for
> >>> transition had to come through a multistakeholder process and have
> >>> stakeholders “across the global Internet community”.
> >>>
> >>> Why is the U.S. government removing the NTIA contract?
> >>> ------------------------------------------------------
> >>>
> >>> The main reason for the U.S. government’s action is that it will get
> >>> rid of a political thorn in the U.S. government’s side: keeping the
> >>> contract allows them to be called out as having a special role in
> >>> Internet governance (with the Affirmation of Commitments between the
> >>> U.S.
> >>> Department of Commerce and ICANN, the IANA contract, and the
> >>> cooperative agreement with Verisign), and engaging in unilateralism
> >>> with regard to the operation of the root servers of the Internet
> >>> naming system, while repeatedly declaring that they support a
> >>> multistakeholder model of Internet governance.
> >>>
> >>> This contradiction is what they are hoping to address. Doing away
> >>> with the NTIA contract will also increase — ever so marginally —
> >>> ICANN’s global
> >>> legitimacy: this is something that world governments, civil society
> >>> organizations, and some American academics have been asking for
> >>> nearly since ICANN’s inception in 1998. For instance, here are some
> >>> demands made [in a declaration by the Civil Society Internet
> >>> Governance Caucus at WSIS, in
> >>> 2005]:
> >>>
> >>>> “ICANN will negotiate an appropriate host country agreement to
> >>>> replace its
> >>> California Incorporation, being careful to retain those aspects of
> >>> its California Incorporation that enhance its accountability to the
> >>> global Internet user community.”ICANN’s decisions, and any host
> >>> country agreement, must be required to comply with public policy
> >>> requirements negotiated through international treaties in regard to,
> >>> inter alia, human rights treaties, privacy rights, gender agreements
> >>> and trade rules. … “It is also expected that the multi-stakeholder
> >>> community will observe and comment on the progress made in this
> >>> process through the proposed \[Internet Governance\] Forum.”
> >>>
> >>> In short: the objective of the transition is political, [not technical].
> >>> In an ideal world, we *should* aim at reducing U.S. state control
> >>> over the core of the Internet’s domain name system.[^1]
> >>>
> >>> It is our contention that **U.S. state control over the core of the
> >>> Internet’s domain name system is *not* being removed** by the
> >>> transition that is currently underway.
> >>>
> >>> Why is the Transition Happening Now?
> >>> ------------------------------------
> >>>
> >>> Despite the U.S. government having given commitments in the past
> >>> that were going to finish the IANA transition by “September 30,
> >>> 2000”, (the [White Paper on Management of Internet Names and
> Addresses] states:
> >>> “The U.S. Government would prefer that this transition be complete
> >>> before the year 2000. To the extent that the new corporation is
> >>> established and operationally stable, September 30, 2000 is intended
> >>> to be, and remains, an ‘outside’ date.”) and later by “fall of
> >>> 2006”,[^2] those turned out to be empty promises. However, this
> >>> time, the transition seems to be going through, unless the U.S.
> >>> Congress manages to halt it.
> >>>
> >>> However, in order to answer the question of “why now?” fully, one
> >>> has to look a bit at the past.
> >>>
> >>> In 1998, through the [White Paper on Management of Internet Names
> >>> and Addresses] the U.S. government [asserted it’s control over the
> >>> root], and asserted — some would say arrogated to itself — the power
> >>> to put out contracts for both the IANA functions as well as the ‘A’
> >>> Root (i.e., the Root Zone Maintainer function that Network Solutions
> >>> Inc. then performed, and continues to perform to date in its current
> >>> avatar as Verisign). The IANA functions contract — a periodically
> >>> renewable contract — was awarded to ICANN, a California-based
> >>> non-profit corporation that was set up exclusively for this purpose,
> >>> but which evolved around the existing IANA (to placate the Internet
> >>> Society).
> >>>
> >>> Meanwhile, of course, there were criticisms of ICANN from multiple
> >>> foreign governments and civil society organizations. Further,
> >>> despite it being a California-based non-profit on contract with the
> >>> government, domestically within the U.S., there was pushback from
> >>> constituencies that felt that more direct U.S. control of the DNS
> >>> was important.
> >>>
> >>> As Goldsmith and Wu summarize:
> >>>
> >>>> “Milton Mueller and others have shown that ICANN’s spirit of
> >>>> “self-regulation” was an appealing label for a process that could
> >>>> be more accurately described as the U.S. government brokering a
> >>>> behind-the-scenes deal that best suited its policy preferences …
> >>>> the United States wanted to ensure the stability of the Internet,
> >>>> to fend off the regulatory efforts of foreign governments and
> >>>> international organizations, and to maintain ultimate control. The
> >>>> easiest way to do that was to maintain formal control while turning
> >>>> over day-to-day control of the root to ICANN and the Internet
> >>>> Society, which had close ties to the regulation-shy American
> >>>> technology industry.” \[footnotes omitted\]
> >>> And that brings us to the first reason that the NTIA announced the
> >>> transition in 2014, rather than earlier.
> >>>
> >>> ### ICANN Adjudged Mature Enough
> >>>
> >>> The NTIA now sees ICANN as being mature enough: the final transition
> >>> was announced 16 years after ICANN’s creation, and complaints about
> >>> ICANN and its legitimacy had largely died down in the international
> >>> arena in that while.
> >>> Nowadays, governments across the world send their representatives to
> >>> ICANN, thus legitimizing ICANN. States have largely been satisfied
> >>> by participating in the Government Advisory Council, which, as its
> >>> name suggests, only has advisory powers. Further, unlike in the
> >>> early days, there is [no serious push for states assuming control of
> >>> ICANN]. Of course they grumble about the ICANN Board not following
> >>> their advice, but no government, as far as I am aware, has walked
> >>> out or refused to participate.
> >>>
> >>> ### L’affaire Snowden
> >>>
> >>> Many within the United States, and some without, believe that the
> >>> United States not only plays an exceptional role to play in the
> >>> running of the Internet — by dint of historical development and
> >>> dominance of American companies — but that *it ought to* have an
> >>> exceptional role because it is the best country to exercise
> >>> ‘oversight’ over ‘the Internet’ (often coming from [clueless
> >>> commentators]), and from dinosaurs of the Internet era, like
> >>> [American IP lawyers] and [American ‘homeland’ security hawks],
> >>> Jones Day, who are ICANN’s lawyers, and other [jingoists] and those
> >>> policymakers who are controlled by these narrow-minded interests.
> >>>
> >>> The Snowden revelations were, in that way, a godsend for the NTIA,
> >>> as it allowed them a fig-leaf of [international][] [criticism][]
> >>> [with which] to counter these domestic critics and carry on with a
> >>> transition that they have been seeking to put into motion for a
> >>> while. The Snowden revelations led Dilma Rousseff, President of
> >>> Brazil, to state in September 2013, at the 68th U.N. General
> >>> Assembly, that Brazil would “present proposals for the establishment
> >>> of a [civilian multilateral framework for the governance and use of
> >>> the Internet]”, and as [Diego Canabarro] points out this catalysed
> >>> the U.S. government and the technical community into taking action.
> >>>
> >>> Given this context, a few months after the Snowden revelations, the
> >>> so- called [I\* organizations] met — seemingly with the blessing of the
> U.S.
> >>> government[^3] — in Montevideo, and put out a [‘Statement on the
> >>> Future of Internet Governance’] that sought to link the Snowden
> >>> revelations on pervasive surveillance with the need to urgently
> >>> transition the IANA stewardship role away from the U.S. government.
> >>> Of course, the signatories to that statement knew fully well, as did
> >>> most of the readers of that statement, that there is no linkage
> >>> between the Snowden revelations about pervasive surveillance and the
> >>> operations of the DNS root, but still they, and others, linked them
> >>> together.
> >>> Specifically, the I\* organizations called for “accelerating the
> >>> globalization of ICANN and IANA functions, towards an environment in
> >>> which all stakeholders, including all governments, participate on an
> >>> equal footing.”
> >>>
> >>> One could posit the existence of two other contributing factors as well.
> >>>
> >>> Given political realities in the United States, a transition of this
> >>> sort is probably best done before an ultra-jingoistic President
> >>> steps into office.
> >>>
> >>> Lastly, the ten-yearly review of the World Summit on Information
> >>> Society was currently underway. At the original WSIS (as seen from
> >>> the civil society quoted above) the issue of US control over the
> >>> root was a major issue of contention. At that point (and during
> >>> where the 2006 date for globalization of ICANN was emphasized by the
> >>> US government).
> >>>
> >>> Why Jurisdiction is Important
> >>> -----------------------------
> >>>
> >>> Jurisdiction has a great many aspects. *Inter alia*, these are:
> >>>
> >>> - Legal sanctions applicable to changes in the root zone (for
> >>> instance, what happens if a country under US sanctions requests a
> >>> change to the root zone file?)
> >>> - Law applicable to resolution of contractual disputes with
> >>> registries, registrars, etc.
> >>> - Law applicable to labour disputes.
> >>> - Law applicable to competition / antitrust law that applies to ICANN
> >>> policies and regulations.
> >>> - Law applicable to disputes regarding ICANN decisions, such as
> >>> allocation of gTLDs, or non-renewal of a contract.
> >>> - Law applicable to consumer protection concerns.
> >>> - Law applicable to financial transparency of the organization.
> >>> - Law applicable to corporate condition of the organization, including
> >>> membership rights.
> >>> - Law applicable to data protection-related policies & regulations.
> >>> - Law applicable to trademark and other speech-related policies &
> >>> regulations.
> >>> - Law applicable to legal sanctions imposed by a country against
> >>> another.
> >>>
> >>> Some of these, but not all, depend on where bodies like ICANN (the
> >>> policy-
> >>> making body), the IANA functions operator (the proposed
> >>> “Post-Transition IANA”, insofar as the names function is concerned),
> >>> and the root zone maintainer are incorporated or maintain their
> >>> primary office, while others depend on the location of the office
> >>> \[for instance, Turkish labour law applies for the ICANN office in
> >>> Istanbul\], while yet others depend on what’s decided by ICANN in
> >>> contracts (for instance, the resolution of contractual disputes with
> >>> ICANN, filing of suits with regard to disputes over new generic
> >>> TLDs, etc.).
> >>>
> >>> However, an issue like sanctions, for instance, depends on where
> >>> ICANN/PTI/RMZ are incorporated and maintain their primary office.
> >>>
> >>> As [Milton Mueller notes], the current IANA contract “requires ICANN
> >>> to be incorporated in, maintain a physical address in, and perform
> >>> the IANA functions in the U.S. This makes IANA subject to U.S. law
> >>> and provides America with greater political influence over ICANN.”
> >>>
> >>> He further notes that:
> >>>
> >>>> While it is common to assert that the U.S. has never abused its
> >>>> authority
> >>> and has always taken the role of a neutral steward, this is not
> >>> quite true.
> >>> During the controversy over the .xxx domain, the Bush administration
> >>> caved in to domestic political pressure and threatened to block
> >>> entry of the domain into the root if ICANN approved it (Declaration
> >>> of the Independent Review Panel, 2010). It took five years, an
> >>> independent review challenge and the threat of litigation from a
> >>> businessman willing to spend millions to get the .xxx domain into
> >>> the root.
> >>>
> >>> Thus it is clear that even if the NTIA’s role in the IANA contract
> >>> goes away, jurisdiction remains an important issue.
> >>>
> >>> U.S. Doublespeak on Jurisdiction
> >>> --------------------------------
> >>>
> >>> In March 2014, when NTIA finally announced that they would hand over
> >>> the reins to “the global multistakeholder community”. They’ve laid
> >>> down two procedural condition: that it be developed by stakeholders
> >>> across the global Internet community and have broad community
> >>> consensus, and they have proposed 5 substantive conditions that any
> >>> proposal must meet:
> >>>
> >>> - Support and enhance the multistakeholder model;
> >>> - Maintain the security, stability, and resiliency of the Internet
> >>> DNS;
> >>> - Meet the needs and expectation of the global customers and partners
> >>> of the IANA services; and,
> >>> - Maintain the openness of the Internet.
> >>> - Must not replace the NTIA role with a solution that is
> >>> government-led or an inter-governmental organization.
> >>>
> >>> In that announcement there is no explicit restriction on the
> >>> jurisdiction of ICANN (whether it relate to its incorporation, the
> >>> resolution of contractual disputes, resolution of labour disputes,
> >>> antitrust/competition law, tort law, consumer protection law,
> >>> privacy law, or speech law, and more, all of which impact ICANN and
> >>> many, but not all, of which are predicated on the jurisdiction of
> >>> ICANN’s incorporation), the jurisdiction(s) of the IANA Functions
> >>> Operator(s) (i.e., which executive, court, or legislature’s orders
> >>> would it need to obey), and the jurisdiction of the Root Zone
> >>> Maintainer (i.e., which executive, court, or legislature’s orders
> >>> would it need to obey).
> >>>
> >>> However, Mr. Larry Strickling, the head of the NTIA, in his
> >>> [testimony before the U.S. House Subcommittee on Communications and
> >>> Technology], made it clear that,
> >>>
> >>>> “Frankly, if \[shifting ICANN or IANA jurisdiction\] were being
> >>>> proposed, I
> >>> don’t think that such a proposal would satisfy our criteria,
> >>> specifically the one that requires that security and stability be
> >>> maintained.”
> >>>
> >>> Possibly, that argument made sense in 1998, due to the significant
> >>> concentration of DNS expertise in the United States. However, in
> >>> 2015, that argument is hardly convincing, and is frankly
> >>> laughable.[^4]
> >>>
> >>> Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:
> >>>
> >>>> “So as we understand it, the technical stability of the DNS doesn’t
> >>> necessarily depend on ICANN’s jurisdiction being in the United
> >>> States. So I wanted to ask would the US Congress support a
> >>> multistakeholder and continuing in the event that it’s shifting
> >>> jurisdiction.”
> >>>
> >>> Mr. Strickling’s response was:
> >>>
> >>>> “No. I think Congress has made it very clear and at every hearing
> >>>> they have
> >>> extracted from Fadi a commitment that ICANN will remain incorporated
> >>> in the United States. Now the jurisdictional question though, as I
> >>> understand it having been raised from some other countries, is not
> >>> so much jurisdiction in terms of where ICANN is located. It’s much
> >>> more jurisdiction over the resolution of disputes.
> >>>> “And that I think is an open issue, and that’s an appropriate one
> >>>> to be
> >>> discussed. And it’s one I think where ICANN has made some movement
> >>> over time anyway.
> >>>> “So I think you have to … when people use the word jurisdiction, we
> >>>> need
> >>> to be very precise about over what issues because where disputes are
> >>> resolved and under what law they’re resolved, those are separate
> >>> questions from where the corporation may have a physical
> >>> headquarters.”
> >>>
> >>> As we have shown above, jurisdiction is not only about the
> >>> jurisdiction of “resolution of disputes”, but also, as Mueller
> >>> reminds us, about the requirement that ICANN (and now, the PTI) be
> >>> “incorporated in, maintain a physical address in, and perform the
> >>> IANA functions in the U.S. This makes IANA subject to U.S. law and
> >>> provides America with greater political influence over ICANN.”
> >>>
> >>> In essence, the U.S. government has essentially said that they would
> >>> veto the transition if the jurisdiction of ICANN or PTI’s
> >>> incorporation were to move out of the U.S., and they can prevent
> >>> that from happening
> >>> *after* the transition, since as things stand ICANN and PTI will
> >>> still come within the U.S. Congress’s jurisdiction.
> >>>
> >>> Why Has the ICG Failed to Consider Jurisdiction?
> >>> ------------------------------------------------
> >>>
> >>> Will the ICG proposal or the proposed new ICANN by-laws reduce
> >>> existing U.S. control? No, they won’t. (In fact, as we will argue
> >>> below, the proposed new ICANN by-laws make this problem even worse.)
> >>> The proposal by the names community (“the CWG proposal”) still has a
> >>> requirement (in Annex S) that the Post-Transition IANA (PTI) be
> >>> incorporated in the United States, and a similar suggestion hidden
> >>> away as a footnote.
> >>> Further, the proposed by-laws for ICANN include the requirement that
> >>> PTI be a California corporation. There was no discussion
> >>> specifically on this issue, nor any documented community agreement
> >>> on the specific issue of jurisdiction of PTI’s incorporation.
> >>>
> >>> Why wasn’t there greater discussion and consideration of this issue?
> >>> Because of two reasons: First, there were many that argued that the
> >>> transition would be vetoed by the U.S. government and the U.S.
> >>> Congress if
> >>> ICANN and PTI were not to remain in the U.S. Secondly, the
> >>> ICANN-formed ICG saw the US government’s actions very narrowly, as
> >>> though the government were acting in isolation, ignoring the rich
> >>> dialogue and debate that’s gone on earlier about the transition
> >>> since the incorporation of ICANN itself.
> >>>
> >>> While it would be no one’s case that political considerations should
> >>> be given greater weightage than technical considerations such as
> >>> security, stability, and resilience of the domain name system, it is
> >>> shocking that political considerations have been completely absent
> >>> in the discussions in the number and protocol parameters
> >>> communities, and have been extremely limited in the discussions in
> >>> the names community. This is even more shocking considering that the
> >>> main reason for this transition is, as has been argued above,
> >>> political.
> >>>
> >>> It can be also argued that the certain IANA functions such as Root
> >>> Zone Management function have a considerable political implication.
> >>> It is imperative that the political nature of the function is duly
> >>> acknowledged and dealt with, in accordance with the wishes of the
> >>> global community. In the current process the political aspects of
> >>> the IANA function has been completely overlooked and sidelined. It
> >>> is important to note that this transition has not been a
> >>> necessitated by any technical considerations. It is primarily
> >>> motivated by political and legal considerations. However, the
> >>> questions that the ICG asked the customer communities to consider
> >>> were solely technical. Indeed, the communities could have chosen to
> >>> overlook that, but they did not choose to do so. For instance, while
> >>> the IANA customer community proposals reflected on existing
> >>> jurisdictional arrangements, they did not reflect on how the
> >>> jurisdictional arrangements should be post- transition , while this
> >>> is one of the questions at the heart of the entire transition.
> >>> There were no discussions and decisions as to the jurisdiction of
> >>> the
> >>> Post-
> >>> Transition IANA: the Accountability CCWG’s lawyers, Sidley Austin,
> >>> recommended that the PTI ought to be a California non-profit
> >>> corporation, and this finds mention in a footnote without even
> >>> having been debated by the “global multistakeholder community”, and
> >>> subsequently in the proposed new by-laws for ICANN.
> >>>
> >>> Why the By-Laws Make Things Worse & Why “Work Stream 2” Can’t
> >>> Address Most Jurisdiction Issues
> >>> --------------------------------------------------------------------
> >>> --------------------------
> >>>
> >>>
> >>> The by-laws could have chosen to simply stayed silent on the matter
> >>> of what law PTI would be incorporated under, but instead the by-law
> >>> make the requirement of PTI being a California non-profit public
> >>> benefit corporation part of the *fundamental by-laws*, which are
> >>> close to impossible to amend.
> >>>
> >>> While “Work Stream 2” (the post-transition work related to improving
> >>> ICANN’s accountability) has jurisdiction as a topic of
> >>> consideration, the scope of that must necessarily discount any
> >>> consideration of shifting the jurisdiction of incorporation of
> >>> ICANN, since all of the work done as part of CCWG Accountability’s
> >>> “Work Stream 1”, which are now reflected in the proposed new
> >>> by-laws, assume Californian jurisdiction (including the legal model
> >>> of the “Empowered Community”).
> >>> Is ICANN prepared to re-do all the work done in WS1 in WS2 as well?
> >>> If the
> >>> answer is yes, then the issue of jurisdiction can actually be
> >>> addressed in WS2.
> >>> If the answer is no — and realistically it is — then, the issue of
> >>> jurisdiction can only be very partially addressed in WS2.
> >>>
> >>> Keeping this in mind, we recommended specific changes in the
> >>> by-laws, all of which were rejected by CCWG’s lawyers.
> >>>
> >>> The Transition Plan Fails the NETmundial Statement
> >>> --------------------------------------------------
> >>>
> >>> The [NETmundial Multistakeholder Document], which was an outcome of
> >>> the NETmundial process, states:
> >>>
> >>>> In the follow up to the recent and welcomed announcement of US
> >>>> Government with regard to its intent to transition the stewardship
> >>>> of IANA functions, the discussion about mechanisms for guaranteeing
> >>>> the transparency and accountability of those functions after the US
> >>>> Government role ends, has to take place through an open process
> >>>> with the participation of all stakeholders extending beyond the
> >>>> ICANN community
> >>>>
> >>>> \[…\]
> >>>>
> >>>> It is expected that the process of globalization of ICANN speeds up
> >>>> leading
> >>> to a truly international and global organization serving the public
> >>> interest with clearly implementable and verifiable accountability
> >>> and transparency mechanisms that satisfy requirements from both
> >>> internal stakeholders and the global community.
> >>>> The active representation from all stakeholders in the ICANN
> >>>> structure
> >>> from all regions is a key issue in the process of a successful
> >>> globalization.
> >>>
> >>> As our past analysis has shown, the IANA transition process and the
> >>> discussions on the mailing lists that shaped it [were neither global
> >>> nor multistakeholder]. The DNS industry represented in ICANN is
> >>> largely US- based. 3 in 5 registrars are from the United States of
> >>> America, whereas less than 1% of ICANN-registered registrars are
> >>> from Africa.
> >>> Two-thirds of the Business Constituency in ICANN is from the USA.
> >>> While ICANN-the-corporation has sought to become more global, the
> >>> ICANN community has remained insular, and this will not change until
> >>> the commercial interests involved in ICANN can become more diverse,
> >>> reflecting the diversity of users of the Internet, and a TLD like
> >>> .COM can be owned by a non-American corporation and the PTI can be a
> >>> non-American entity.
> >>>
> >>> What We Need: Jurisdictional Resilience
> >>> ---------------------------------------
> >>>
> >>> It is no one’s case that the United States is less fit than any
> >>> other country as a base for ICANN, PTI, or the Root Zone Maintainer,
> >>> or even as the headquarters for 9 of the world’s 12 root zone
> >>> operators (Verisign runs both the A and J root servers). However,
> >>> just as having multiplicity of root servers is important for
> >>> ensuring technical resilience of the DNS system (and this is shown
> >>> in the uptake of Anycast by root server operators), it is equally
> >>> important to have immunity of core DNS functioning from political
> >>> pressures of the country or countries where core DNS infrastructure
> >>> is legally situated and to ensure that we have diversity in terms of
> >>> legal jurisdiction.
> >>>
> >>> Towards this end, we at CIS have pushed for the concept of
> >>> “jurisdictional resilience”, encompassing three crucial points:
> >>>
> >>> - Legal immunity for core technical operators of Internet functions
> >>> (as opposed to policymaking venues) from legal sanctions or orders
> >>> from the state in which they are legally situated.
> >>> - Division of core Internet operators among multiple jurisdictions
> >>> - Jurisdictional division of policymaking functions from technical
> >>> implementation functions
> >>>
> >>> Of these, the most important is the limited legal immunity (akin to
> >>> a greatly limited form of the immunity that UN organizations get
> >>> from the laws of their host countries). This kind of immunity could
> >>> be provided through a variety of different means: a host-country
> >>> agreement; a law passed by the legislature; a U.N. General Assembly
> >>> Resolution; a U.N.-backed treaty; and other such options exist. We
> >>> are currently investigating which of these options would be the best
> >>> option.
> >>>
> >>> And apart from limited legal immunity, distribution of
> >>> jurisdictional control is also valuable. As we noted in our
> >>> submission to the ICG in September
> >>> 2015:
> >>>
> >>>> Following the above precepts would, for instance, mean that the
> >>>> entity
> >>> that performs the role of the Root Zone Maintainer should not be
> >>> situated in the same legal jurisdiction as the entity that functions
> >>> as the policymaking venue. This would in turn mean that either the
> >>> Root Zone Maintainer function be taken up Netnod
> >>> (Sweden-headquartered) or the WIDE Project
> >>> (Japan-headquartered) \[or RIPE-NCC, headquartered in the
> >>> Netherlands\], or that if the IANA Functions Operator(s) is to be
> >>> merged with the RZM, then the IFO be relocated to a jurisdiction
> >>> other than those of ISOC and ICANN.
> >>> This, as has been stated earlier, has been a demand of the Civil
> >>> Society Internet Governance Caucus. Further, it would also mean that
> >>> root zone servers operators be spread across multiple jurisdictions
> >>> (which the creation of mirror servers in multiple jurisdictions will
> >>> not address).
> >>>
> >>> However, the issue of jurisdiction seems to be dead-on-arrival,
> >>> having been killed by the United States government.
> >>>
> >>> Unfortunately, despite the primary motivation for demands for the
> >>> IANA transition being those of removing the power the U.S.
> >>> government exercises over the core of the Internet’s operations in
> >>> the form of the DNS, what has ended up happening through the IANA
> >>> transition is that these powers have not only not been removed, but
> >>> in some ways they have been entrenched further! While earlier, the
> >>> U.S. had to specify that the IANA functions operator had to be
> >>> located in the U.S., now ICANN’s by-laws themselves will state that
> >>> the post-transition IANA will be a California corporation.
> >>> Notably,
> >>> while the Montevideo Declaration speaks of “globalization” of ICANN
> >>> and of the IANA functions, as does the NETmundial statement, the
> >>> NTIA announcement on their acceptance of the transition proposals
> >>> speaks of “privatization” of ICANN, and not “globalization”.
> >>>
> >>> All in all, the “independence” that IANA is gaining from the U.S. is
> >>> akin to the “independence” that Brazil gained from Portugal in 1822.
> >>> Dom Pedro of Brazil was then ruling Brazil as the Prince Regent
> >>> since his father Dom João VI, the King of United Kingdom of
> >>> Portugal, Brazil and the Algarves had returned to Portugal. In 1822,
> >>> Brazil declared independence from Portugal (which was formally
> >>> recognized through a treaty in 1825). Even after this
> >>> “independence”, Dom Pedro continued to rule Portugal just as he had
> >>> before indepedence, and Dom João VI was provided the title of
> >>> “Emperor of Brazil”, aside from being King of the United Kingdom of
> >>> Portugal and the Algarves. The “indepedence” didn’t make a whit of a
> >>> difference to the
> >>> self-
> >>> sufficiency of Brazil: Portugal continued to be its largest trading
> >>> partner. The “independence” didn’t change anything for the nearly 1
> >>> million slaves in Brazil, or to the lot of the indigenous peoples of
> >>> Brazil, none of whom were recognized as “free”. It had very little
> >>> consequence not just in terms of ground conditions of day-to-day
> >>> living, but even in political terms.
> >>>
> >>> Such is the case with the IANA Transition: U.S. power over the core
> >>> functioning of the Domain Name System do not stand diminished after
> >>> the transition, and they can even arguably be said to have become
> >>> even more entrenched. Meet the new boss: same as the old boss.
> >>>
> >>> [^1]: It is an allied but logically distinct issue that U.S.
> >>> businesses — registries
> >>> and registrars — dominate the global DNS industry, and as a result
> >>> hold the reins at ICANN.
> >>>
> >>> [^2]: As Goldsmith & Wu note in their book *Who Controls the Internet*:
> >>> “Back in 1998 the U.S. Department of Commerce promised to relinquish
> >>> root authority by the fall of 2006, but in June 2005, the United
> >>> States reversed course. “The United States Government intends to
> >>> preserve the security and stability of the Internet’s Domain Name
> >>> and Addressing System (DNS),”
> >>> announced Michael D. Gallagher, a Department of Commerce official.
> >>> “The United States” he announced, will “maintain its historic role
> >>> in authorizing changes or modifications to the authoritative root
> >>> zone file.”
> >>>
> >>> [^3]: Mr. Fadi Chehadé revealed in an interaction with Indian
> >>> participants at ICANN 54 that he had a meeting “at the White House”
> >>> about the U.S. plans for transition of the IANA contract before he
> >>> spoke about that when [he visited India in October 2013] making the
> >>> timing of his White House visit around the time of the Montevideo
> >>> Statement.
> >>>
> >>> [^4]: As an example, [NSD], software that is used on multiple root
> >>> servers, is funded by a Dutch foundation and a Dutch corporation,
> >>> and written mostly by European coders.
> >>>
> >>> [US government announced]:
> >>> https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-
> >>> transition-key-internet-domain-name-functions
> >>> [Internet Assigned Numbers Authority]: https://www.iana.org/
> >>> [in a declaration by the Civil Society Internet Governance
> >>> Caucus at WSIS, in
> >>> 2005]:
> >>> https://www.itu.int/net/wsis/docs2/pc3/contributions/sca/hbf-29.doc
> >>> [not technical]:
> >>> [White Paper on Management of Internet Names and Addresses]:
> >>> https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-
> >>> 25-en
> >>> [asserted it’s control over the root]:
> >>>
> http://www.icannwatch.org/archive/mueller_icann_and_internet_governa
> >>> n
> >>> ce.pdf
> >>> [no serious push for states assuming control of ICANN]:
> >>> http://www.internetgovernance.org/2012/05/24/threat-analysis-of-itus
> >>> -
> >>> wcit-part-1-historical-context/
> >>> [clueless commentators]:
> >>>
> http://www.wsj.com/articles/SB100014240527023035633045794473626109
> 55
> >>> 656
> >>> [American IP lawyers]:
> >>> http://www.circleid.com/posts/20140316_if_the_stakeholders_already_c
> >>> on
> >>> trol_the_internet_netmundial_iana/
> >>> [American ‘homeland’ security hawks]:
> >>> http://www.lawfareblog.com/2014/03/who-controls-the-internet-
> address
> >>> -
> >>> book-icann-ntia-and-iana/
> >>> [jingoists]:
> >>> http://homepages.wmich.edu/~cooneys/poems/cummings.nextto.html
> >>> [international]:
> >>> http://www.ft.com/cms/s/0/4529516c-c713-11e3-889e-
> 00144feabdc0.html
> >>> [criticism]:
> >>> https://www.rt.com/usa/nsa-fallout-relinquish-internet-oversight-002/
> >>> [with which]:
> >>> https://twitter.com/carolinegreer/status/454253411576598528
> >>> [civilian multilateral framework for the governance and use of
> >>> the
> >>> Internet]:
> >>> https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf
> >>> [Diego Canabarro]: https://icannwiki.com/Diego_Canabarro
> >>> [I\* organizations]:
> >>> https://www.apnic.net/community/ecosystem/i*orgs
> >>> [‘Statement on the Future of Internet Governance’]:
> >>> https://www.apnic.net/publications/news/2013/montevideo-statement-
> on
> >>> -
> >>> future-of-internet-cooperation
> >>> [Milton Mueller notes]:
> >>> http://content.netmundial.br/contribution/roadmap-for-globalizing-ia
> >>> na-
> >>> four-principles-and-a-proposal-for-reform-a-submission-to-the-global
> >>> -
> >>> multistakeholder-meeting-on-the-future-of-internet-governance/96
> >>> [testimony before the U.S. House Subcommittee on Communications
> >>> and
> >>> Technology]: https://www.youtube.com/watch?v=8v-
> >>> yWye5I0w&feature=youtu.be
> >>> [NETmundial Multistakeholder Document]:
> >>> http://netmundial.br/wp-content/uploads/2014/04/NETmundial-
> >>> Multistakeholder-Document.pdf
> >>> [were neither global nor multistakeholder]:
> >>> cis-india.org/internet-governance/blog/global-multistakeholder-commu
> >>> nity-
> >>>
> >>> neither-global-nor-multistakeholder
> >>> [he visited India in October 2013]:
> >>> http://articles.economictimes.indiatimes.com/2013-10-
> >>> 22/news/43288531_1_icann-internet-corporation-us-centric-internet
> >>> [NSD]: https://www.nlnetlabs.nl/projects/nsd/
> >>>
> >>>
> >>> --
> >>> Pranesh Prakash
> >>> Policy Director, Centre for Internet and Society
> >>> http://cis-india.org
> >>> | tel:+91
> >>> 80 40926283 sip:[log in to unmask] | xmpp:[log in to unmask]
> >>> https://twitter.com/pranesh
> >>>
> >>>
> >
>
> --
> Pranesh Prakash
> Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91
> 80 40926283 sip:[log in to unmask] | xmpp:[log in to unmask]
> https://twitter.com/pranesh
|
