DOTCOM ACT “BREAKTHOUGH” PUTS TEETH IN ACCOUNTABILITY DEMANDS

Leaders of the House Energy & Commerce Committee today put out a splashy announcement, trumpeting a “bipartisan breakthrough” on legislation dictating the terms of congressional approval of the National Telecommunications and Information Administration’s plan to relinquish the last vestiges of direct government control over the Internet domain name system.

It’s starting to look like congressional approval of the IANA functions stewardship transition is not a matter of “if,” but “when.”

The agreement, embodied in an amended version of the DOTCOM Act (H.R. 805) that will be marked up by the House Communications and Technology Subcommittee tomorrow, abandons the earlier DOTCOM Act’s requirement that the U.S. Comptroller General take up to one year to prepare a report analyzing the proposed transition arrangement.

Under the amended DOTCOM Act, a mere 30-day opportunity for congressional review is required. Looks like the bill sponsors are confident in their own ability to vet the plan.

So how far apart is House Commerce and the NTIA on the minimum components of an acceptable IANA functions stewardship proposal?

In the table below, I compare the NTIA’s March 14, 2014, list of transition plan requirements with those set out in the amended DOTCOM Act.

table5

They’re on the same page as far as I can tell.

Except for that last little item: accountability.

In this regard, it appears that the DOTCOM Act’s drafters borrowed a bit from Rep. Kelley’s Defending Internet Freedom Act, by specifically incorporating the accountability measures that will eventually emerge from ICANN’s Cross Community Working Group on Enhancing ICANN Accountability.

Members of the CWG-Stewardship and CCWG-Accountability must feel encouraged to have the House of Representatives in their corner. Not only are House leaders supporting them, they’re supporting them without even knowing what their final proposals will be.

Congressional approval of the ICANN community’s eventual IANA stewardship transition plan seems almost assured in light of tomorrow’s likely markup of H.R. 805. After all, opposition to the IANA transition was mostly centered in the House.

Senate approval of the IANA transition along the lines of the amended DOTCOM Act seems likely. After all, based on admittedly limited evidence, the Senate supports everything that is in the House legislation.

The Senate last expressed its view on the IANA transition via S. Res. 71, the “Internet Governance Week” resolution passed Feb. 5. on the eve of ICANN’s Singapore public meeting.

The Senate resolution indicated support for the same IANA transition pre-conditions found in the NTIA principles and the DOTCOM Act. Additionally, the resolution called for accountability measures to be put in place:

“prior to the execution of the transition of the stewardship of the functions of the Internet Assigned Numbers Authority, each of the foregoing elements of such proposal is adopted and made effective by ICANN through incorporation in its articles of incorporation and by-laws, as needed, and subject to independent adjudication or arbitration for dispute resolution, as appropriate.

Even without tomorrow’s action on the DOTCOM Act, the topics of IANA stewardship transition and accompanying accountability reforms were widely expected to be the leading topic of discussion at the upcoming public meeting in Buenos Aires. It might as well be the only topic. At this critical, once-in-a-generation moment, the ICANN community will have a clear shot at writing rules for managing key Internet management functions without congressional interference but, instead, with firm congressional support.

Mercifully, it now appears that the transfer of stewardship responsibilities over the IANA functions will not become a presidential election issue.

Finally, does anybody think that the DOTCOM Act is poorly named? After all, at this writing, ICANN has already delegated 639 new top-level domains, with hundreds more still in the pipeline. Add to those the legacy domains and the country-code domains and the IDNs.

Why should legislation carrying out congressional approval of the IANA transition (a forward-looking piece of legislation, I think) be branded with the name of a legacy domain?