ICANN Accountability Debated as Internet Transition Nears

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By Alexis Kramer

Sept. 13 — Questions of accountability to global internet users are dogging the upcoming shift of control for behind-the-scenes technical functions of the internet out of U.S. hands.

Accountability and transparency issues have been at the forefront of complaints by internet domain applicants and others against the Internet Corporation for Assigned Names and Numbers as it continues to create and delegate new top-level internet domains.

The transition plan is catching heat on Capitol Hill, where top GOP lawmakers are voicing a number of misgivings about the move just weeks before it is scheduled to occur.

Texas Republican Senator Ted Cruz is urging Congress to include language in a continuing resolution that would block the transition. Senate Commerce, Science and Transportation Committee Chairman John Thune (R-S.D.) told reporters Sept. 13 that he expects lawmakers will include such language in the continuing resolution.

Cruz will hold a Senate Judiciary Oversight, Agency Action, Federal Rights and Federal Courts Subcommittee hearing Sept. 14 to investigate what he calls the “possible dangers” of the plan. ICANN CEO and President Göran Marby and Assistant Commerce Secretary Lawrence E. Strickling are scheduled to testify.

The U.S. Commerce Department's National Telecommunications and Information Administration partnered with ICANN in 1998. The department formally announced its intentions to cede oversight in 2014.

The transition plan includes a set of measures designed to empower the ICANN community to enforce greater accountability for the organization through a series of checks on the board of directors. Such measures enable the community to, among other things, remove individual board members and recall the entire board. The plan has received broad support from the business community and Republican and Democratic lawmakers. (19 ECLR 362, 3/19/14).

But GOP critics and attorneys representing top-level domain applicants question whether the added accountability measures will be enough.

“I see no reason why ICANN would not be able to oversee the technical Internet functions,” Flip Petillion, a partner at Crowell & Moring LLP in Brussels who co-chairs the firm's TLD and Domain Name practice, told Bloomberg BNA. “However, whether ICANN will do so in an accountable way is another question.”

ICANN Process Challenged

Petillion said that domain applicants have raised legitimate questions about the fairness and transparency of ICANN's processes. Applicants for the .hotel top-level domain, whom Petillion represented, have challenged an ICANN board decision not to disqualify a competing applicant, HOTEL Top-Level Domain Sarl (HTLD), after finding that a person allegedly associated with HTLD accessed confidential data without authorization (21 ECLR 34, 8/31/16)

Domain registry Donuts Inc. filed a lawsuit against ICANN, alleging that the organization intentionally failed to fully investigate Nu Dotco LLC, the applicant who won .web in an ICANN-run auction for $135 million (21 ECLR 32, 8/17/16). VeriSign Inc., operator of the .com and .net domains, announced after the auction that it had provided the funds for NuDotco's bid and plans to acquire the rights to .web.

In August, ICANN's board accepted an independent review panel declaration that it didn't exercise due diligence when it chose not to reconsider whether Dot Registry LLC, an applicant for the .inc, .llc and .llp top-level domains should have priority status over competing applicants (21 ECLR 32, 8/17/16).

Critics say ICANN has failed to show that it can handle cases such as these in an accountable and transparent way.

“ICANN has yet to find a way to handle these concerns properly and in a more mature fashion than it did so far,” Petillion said

On Sept. 8, the Republican chairmen of four House and Senate committees cited the review panel's declaration in the Dot Registry case as they asked the Obama administration to reconsider the plan (21 ECLR 36, 9/14/16).

“Given the Independent Review Panel's findings in this case and the circumstances surrounding additional cases that are currently being investigated by other Independent Review Panels, we have serious concerns about the ability to ensure that ICANN would follow its own bylaws if the Administration were to relinquish the IANA functions contract,” Senate Commerce, Science, and Transportation Committee Chairman John Thune (R-S.D.), Senate Judiciary Committee Chairman Charles Grassley (R-Iowa), House Energy and Commerce Committee Chairman Fred Upton (R-Mich.), and House Judiciary Committee Chairman Robert Goodlatte (R-Va.) wrote.

Arif H. Ali, lead attorney for Dot Registry and a partner at Dechert LLP in Washington who co-chairs the firm’s international arbitration practice, told Bloomberg BNA that under ICANN's procedural processes and rules, which parties such as top-level domain applicants are required to “accept wholesale, ICANN is accountable to no one.”

“What is required right now is a careful examination of how ICANN functions, whether the multi-stakeholder model is truly working as the US government originally intended, and putting in place policies and procedures that will ensure transparency and accountability,” Ali said.

Accountability Measures Strong, Proponents Say

The transition plan is comprised of two parts: the first addressing performance of the internet technical functions and the second addressing enhancements to ICANN's accountability. The accountability piece of the plan include measures that enable the community to, among other things, reject changes to bylaws, take the board to binding arbitration, remove board members and recall the entire board.

ICANN and proponents of the plan argue that these measures will strengthen the organization's accountability framework.

“We benefit from very strong accountability measures in place for the organization,” Theresa Swinehart, Senior Vice President of ICANN's Multistakeholder Strategy and Strategic Initiatives department, told Bloomberg BNA. The ICANN community has provided additional measures that will enhance ICANN’s accountability in light of the changing relationship with the U.S. as part of the transition, she said.

Jonathan Zuck, president of ACT | The App Association, told Bloomberg BNA that as a result of the “extensive reforms” developed by the ICANN community, ICANN will have a strong accountability framework.”

A group of 27 technology and internet companies including ACT | The App Association, Amazon.com Inc., Facebook Inc., Google Inc. and Twitter Inc. said in a Sept. 13 letter to House and Senate leaders that the transition plan “includes significant and concrete measures to enhance ICANN’s accountability to its global community.” The companies urged lawmakers not to delay the transition.

Swinehart said that the package of proposals for the IANA Stewardship transition has been accepted by the NTIA and has enabled the transition to happen. “We’re continuing to work with the community and focusing on ensuring that we’re ready for the transition to happen on Sept. 30,” she said.

— With assistance from Kyle Daly

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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