[council] Answers to some common questions being encountered by the ICANN staff on the IANA stewardship transition

[Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

From


https://www.icann.org/iana-stewardship-questions

Answering some of your questions on the stewardship transition
By delivering the IANA stewardship transition 
proposal<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en>
 to the U.S. Department of Commerce's National Telecommunications and 
Information Administration (NTIA) in March, the global Internet community 
executed the largest multistakeholder 
process<https://www.icann.org/resources/pages/iana-accountability-participation-statistics-2015-11-04-en>
 ever undertaken in Internet governance.
The transition proposal achieved the broad support thousands of Internet 
stakeholders by reinforcing the current multistakeholder system and making 
ICANN more accountable to Internet users around the world. The proposal also 
garnered support from global representatives of industry, the technical 
community, civil society groups, academics, governments and end users.
The timely completion of the transition will help preserve the continued 
openness of the Internet by entrusting its oversight with those who have made 
the greatest investments in its extraordinary success so far – the 
volunteer-based multistakeholder community.
Still, some questions remain about the nature of the IANA functions, ICANN, and 
the likely impacts of the transition and we wanted to answer them for you in 
one place.
1.    Does the transition threaten Internet freedom?
No. The United States Government's contract with ICANN does not give the U.S. 
any power to regulate or protect speech on the Internet. The IANA functions are 
technical – not content – based. The freedom of any person to express his or 
herself on the globally interoperable Internet is in fact enhanced by the 
transition moving forward. ICANN is not, has not been, and by its Bylaws cannot 
become, a place for regulation of content.
Ensuring that the Internet remains open, interoperable and stable in the 
long-term helps protect Internet freedom. Some believe that extending the 
contract may actually lead to the loss of Internet freedom because it could 
fuel efforts to move Internet governance decisions to the United Nations 
(U.N.). Former Homeland Security Secretary Michael Chertoff and retired Vice 
Chairman of the Joint Chiefs of Staff James Cartwright 
stated<http://www.politico.com/agenda/story/2016/06/keep-internet-free-and-open-icann-000140>
 that, "rejecting or even delaying the transition would be a gift to those 
governments threatened by a free and open Internet."
2.    Will countries be able to censor speech on the Internet after the 
transition?
No more so than they can today. Right now, there is nothing about ICANN or its 
contract with the U.S. Government that prevents a country from censoring or 
blocking content within its own borders. ICANN is a technical organization and 
does not have the remit or ability to regulate content on the Internet. That is 
true under the current contract with the U.S. Government and will remain true 
without the contract with the U.S. Government. The transition will not empower 
or prohibit sovereign states from censoring speech.
Many leading civil society and advocacy 
groups<https://www.accessnow.org/cms/assets/uploads/2016/05/CSstatementonIANAtransitionMay2016-1.pdf>
 [PDF, 106 KB] actually argue that the transition will enhance free speech on 
the Internet. Human Rights Watch, Access Now, Article19, Open Technology 
Institute and Public Knowledge, support the transition because "executing upon 
the IANA transition is the best way to ensure the continued functionality of 
the global internet and to protect the free flow of information so essential to 
human rights protection."
3.    Will ICANN be more susceptible to capture by a single entity after the 
transition?
No. ICANN's multistakeholder model is designed to ensure that no single entity, 
whether country, business or interest group, can capture ICANN or exclude other 
parties from decision-making processes. Features of this model include open 
processes where anyone can participate, decisions made by consensus, 
established appeals mechanisms, and transparent and public meetings. These 
elements are all reinforced in the community transition 
proposal<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en>
 and have been building blocks for the free and open Internet we see today.
NTIA, along with other U.S. Government agencies and a panel of corporate 
governance experts, conducted a thorough review of the transition 
proposal<https://www.ntia.doc.gov/report/2016/iana-stewardship-transition-proposal-assessment-report>.
 NTIA confirmed that the proposal mitigated the risk of a government or 
third-party capture of ICANN after the transition. Columbia University's John 
Coffee also concluded 
that<http://www.newyorklawjournal.com/id=1202762978409/Adventures-in-Corporate-Governance-Guarding-the-Internet?mcode=0&curindex=0&curpage=ALL>,
 "ICANN has been given so many checks and balances that it is difficult to 
imagine a hostile takeover," after the transition.
4.    Will ICANN seek oversight by the U.N. to maintain its antitrust exemption 
after the transition?
No. ICANN is not, and never has been exempted from antitrust laws. ICANN has 
not been granted an antitrust exemption through any of its contracts with NTIA 
or the U.S. Department of Commerce. No court ruling in favor of ICANN has ever 
cited an antitrust exemption to support its ruling. This past July, NTIA 
Administrator Larry Strickling addressed the 
concerns<https://www.ntia.doc.gov/speechtestimony/2016/remarks-assistant-secretary-strickling-internet-governance-forum-usa>
 about the possible antitrust liability of a post-transition ICANN and 
reaffirmed that "ICANN always has and will continue to be subject to antitrust 
laws."
After the transition, ICANN will have no mandate, need or reason to seek to be 
overseen by another governmental or inter-governmental group for protection. 
NTIA also would not allow the transition to occur if ICANN were to replace the 
role of the U.S. Government with another government or inter-governmental 
organization.
5.    Will governments have more control over the Internet after the transition?
No. The transition proposal does not increase the role of governments over the 
Internet or ICANN as an organization. The multistakeholder model appropriately 
limits the influence of governments and intergovernmental organizations to an 
advisory role in policy development. More than 160 governments actively 
participate as a single committee and must come to a consensus before policy 
advice can be issued.
After the transition, there will be times where the ICANN Board must give 
special consideration to the public policy advice of governments. However, this 
will only happen when there is no objection from any government in the 
committee – which includes the United States. This is a stricter requirement 
than is currently in place for government advice.
In a March testimony before 
Congress<http://docs.house.gov/meetings/IF/IF16/20160317/104682/HHRG-114-IF16-Wstate-PlonkA-20160317.pdf>
 [PDF, 103 KB], Intel Corporation stated that the transition proposal "strikes 
the right balance of including governments in a true multistakeholder 
community, while not giving them increased influence over ICANN's decisions," 
after the transition.
6.    Does delaying the transition by one or two years have any negative 
consequences?
Yes, any delay of the transition could have significant global consequences. 
The Internet is a voluntary, trust-based system. A delay would introduce 
uncertainty, for businesses and other stakeholders, which could have long-term 
business, social, cultural, political and economic impacts.
This past March, U.S. Ambassador David Gross 
testified<http://www.commerce.senate.gov/public/index.cfm/hearings?ID=418B1D81-1F0B-4E09-BB71-A98FBABE42B9>
 that, "the clearest impact [of a delay] is on the broader, global community. 
It will signal that the U.S. has changed its position and no longer believes in 
a private-sector led internet and that governments will play a primary role in 
making the final decision. Russia, China, and others will welcome such a 
decision." In addition, the Centre for International Governance Innovation 
added<https://www.ourinternet.org/press/statement-by-gcig-regarding-iana-transition/>
 to this sentiment by expressing that "[A delay will] increase distrust, and 
will likely encourage some governments to pursue their own national or even 
regional Internets."
7.    Will ICANN relocate its headquarters outside of the United States after 
the transition?
No. ICANN will not relocate its corporate headquarters location after the 
transition. The transition proposal clearly 
states<https://www.ianacg.org/icg-files/documents/IANA-transition-proposal-final.pdf>
 [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to 
remain unchanged." California law is the basis for the new mechanisms created 
to empower the ICANN community and hold ICANN the organization, Board and 
community, accountable. In addition, ICANN's Articles of Incorporation are 
filed under California law, and its Bylaws state that ICANN's headquarters are 
in California.
8.    Is it illegal to allow the transition to move forward without 
congressional approval because it is a transfer of U.S. property?
No. ICANN is not aware of any U.S. Government property that would be 
transferred as a result of the transition. In a letter to Chairman Grassley and 
Chairman 
Goodlatte<http://www.ntia.doc.gov/files/ntia/publications/20160810_-_ntia_response_to_grassley_goodlatte_-_iana.pdf>
 [PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce Office 
of General Counsel conducted a legal review of this issue and advised NTIA that 
transition would not result in the transfer of U.S. Government property, and 
that, in the view of the Department, the authoritative root zone file is not 
U.S. Government property.
9.    Will Verisign have the ability to raise prices of.com domain names on 1 
October 2016 as a result of the transition?
No. The cost of .com domains is capped at $7.85 until 30 November 2018. The 
current pricing of the .com registry is defined by two separate contracts (1) 
the .com Registry Agreement between Verisign and ICANN; and (2) the Cooperative 
Agreement between Verisign and the Department of Commerce. After 2018, Verisign 
and NTIA will have to negotiate to change the terms for the Cooperative 
Agreement or agree to end the Cooperative Agreement before discussing new 
pricing of the .com domain with ICANN.
In 
letters<https://www.ntia.doc.gov/files/ntia/publications/2016-8-31_doj_response_to_cruz-lee-duffy.pdf>
 [PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week, 
the Assistant Attorney General stated that, consistent with past practices, it 
is expected that NTIA will seek the advice of the U.S. Department of Justice on 
any competition issues implicated by the extension of these two contracts.
10.          Do the recent independent review process (IRP) decisions regarding 
applications for new generic top level domains prove that ICANN is not 
sufficiently transparent or accountable enough for the transition?
No. An IRP is an accountability mechanism used to review and resolve a concern 
raised by the community over a policy decision made by ICANN. Any result from 
an IRP, whether positive or negative, demonstrates that the system of checks 
and balances built into the ICANN multistakeholder model works. The IRP has 
been enhanced to strengthen ICANN's commitment to employ open, transparent, 
bottom-up, multistakeholder processes after the transition.
11.          Does ICANN have an operational relationship with the Chinese 
government?
No. ICANN does not have any operational relationship with the Chinese 
Government. ICANN's engagement center in China is one of seven around the 
world. The presence of an ICANN engagement center or operational hub within a 
country does not imply any level of support for the nation's government or its 
policies.