Internet Players Wrestle with Proposals to Prevent Capture

The Internet is run by a bunch of geeks sitting in a darkened space, lit only by the glow from LED screens, right? That Hollywood image may be how the general public perceives what it takes to send and receive emails, deliver apps, enable electronic transactions, and store great gobs of data.

There is much more to operating the Internet, however, including a challenging management environment for ensuring that the technology is adequate, and that a multitude of network stakeholders can work together to keep the system functioning properly. That management environment is about to change, causing widespread fears that the equitable and efficient operation of the network could be severely undermined.

“We want one global Internet that is not fragmented nor is hijacked by authoritarian regimes,” said Sen. John Thune, R-S.D., at a February hearing on the future management of the Internet.

Any change in Internet management should retain certain core elements that have supported the currently successful system, including respect for the rule of law, support for transparency and accountability, and rejection of disguised barriers to trade, the U.S. Chamber of Commerce has cautioned.

These worries surfaced because the U.S. government decided to relinquish its long-held stewardship role for worldwide operation of the network. The U.S. government, a critical financial and technical supporter of the Internet for more than 20 years, currently is the glue that keeps the network system intact.

The National Telecommunications and Information Administration, a unit of the U.S. Commerce Department, exercises oversight of the network through a contract with the Internet Corporation for Assigned Names and Numbers.

US Decides to Bow Out

The NTIA in March 2014 determined that it was no longer necessary for the U.S. to maintain its oversight presence, and that the network should be administered by a multistakeholder group of telecom organizations and e-commerce businesses operating through the ICANN corporate vehicle.

“The timing is right to start the transition process,” said Assistant Secretary of Commerce and NTIA administrator Lawrence Strickling.

ICANN has matured, and it recently has taken steps to improve its accountability and transparency, as well as its technical competence, according to NTIA. At the same time, international support for the multistakeholder model of Internet governance has grown.

ICANN stakeholders for the last year have been wrestling with developing reforms designed to counter potential internal malfeasance by the entity’s management. The effort includes adopting measures for preventing the capture or control of ICANN by sovereign nations, or by international groups with agendas at variance with the open and smooth operation of the network.

ICANN last month released a detailed, legalistic 143-page draft document suggesting various improvements aimed at warding off any attempts to unduly control its operations. Any governance reforms would have to be approved not only by ICANN stakeholders, but also by the U.S. Congress, before it would allow NTIA to implement the handoff.

Congressional concerns about the handoff were evident in at least three in-depth hearings conducted by the U.S. House and Senate this year.

“As the House Judiciary Committee’s recent hearing further demonstrated, ICANN must have accountability and transparency measures in place before such a transition could occur, and they simply are not there now,” Rep. Bob Goodlatte, R-Va., chairman of the Judiciary Committee, said earlier this month.

Internal and External Threats

The ICANN governance draft focuses on three central elements: ICANN’s mission; accountability measures; and enforceability.

The ICANN Mission: ICANN should clarify its role to counter fears about mission creep and to prevent the organization from engaging in commercial or regulatory activities more appropriate to others, the draft suggests. Also, clarification would prevent any party from utilizing ICANN as a vehicle to capture the Internet, and control access or content.

ICANN should define its mission as “limited to coordinating and implementing policies that are designed to ensure the stable and secure operation of the Domain Name System (DNS) and are reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS,” the draft recommends.

The DNS involves naming and addressing functions, including managing the root building block technology for the network messaging function.

ICANN should specifically state that its mission “does not include the regulation of services that use the DNS or the regulation of the content these services carry or provide,” the document advises.

ICANN Governance: The draft devotes considerable attention to governance issues, including control of the ICANN board, enhanced methods for stakeholders to review and challenge operations and policies, and the creation of a two-tier system under which some by-laws would be harder to change than others.

For example, to ensure against the creation of an insulated and out of control board, the draft includes provisions for ICANN supporting organizations to initiate the removal of individual board members — or to fire the entire board en masse if the situation arises.

Enforceability: Any changes would have little effect if enforcement should be weak. While the draft contains numerous accountability measures that likely will cover most anticipated problems, participants in the process have asked what sort of external legal mechanism could be used to backstop the internal governance process.

There has been considerable discussion among stakeholders about establishing the U.S. legal system as the backstop mechanism. ICANN currently operates as a California-chartered, not-for-profit corporation.

Shareholder- or member-based accountability systems are routine for most organizations, “but this is definitely new for ICANN, where only the U.S. government has held ICANN accountable through its power to withdraw the NTIA-ICANN contract,” said Steve DelBianco, executive director of NetChoice.

“Once the U.S. lets go of the ICANN contract for the Internet Assigned Names Authority, the community needs a new way to make its powers enforceable in the face of resistance by ICANN’s board,” he told the E-Commerce Times.

That’s the most significant item we haven’t yet addressed: how to make these new community powers enforceable under the laws of California where ICANN is organized,” DelBianco said.

“As all the accountability measures are being fashioned to interface with California law, we need firm assurance that ICANN will remain within U.S. jurisdiction,” Internet Commerce Association counsel Philip Corwin told the E-Commerce Times.

Resolving differences and gaining the approval of stakeholders, the NTIA and Congress for a final governance plan likely will take the reform process well into next year. NTIA therefore will hold onto its oversight role by renewing its current contract with ICANN, which expires in September.

Beyond ICANN: Other Worries

While it appears that the ICANN process eventually will protect the Internet from any control or capture issues related to the messaging functions within ICANN’s central mission, concerns about control threats from other quarters remain.

“A number of governments are eager to enhance their control over Internet content and commerce, and would like to assert international regulation and governance over the Internet far exceeding what is currently the case,” said Brett Schaefer, research fellow at The Heritage Foundation.

“China, Russia and a number of Muslim countries in particular have been open in their desire to limit speech on the Internet that they deem offensive or damaging to their interests,” he told the E-Commerce Times.

“Their efforts have been temporarily sidelined by the announcement by the U.S. that it would end its contractual relationship with the ICANN, but we should not delude ourselves that even a successful ICANN transition will resolve the debate over the future of Internet governance,” Schaefer said.

“Ample opportunities exist in the future,” he pointed out, “particularly meetings of the International Telecommunication Union and other forums on the Internet, like the World Summit of the Information Society and the World Conference on International Telecommunications, for countries desirous of more direct government control of the Internet to press their agenda.”