The Wrong Way to Deal with the ICANN/IANA Transition

We have written previously about the decision by the Department of Commerce (through the NTIA -- the National Telecommunications and Information Administration) to transition control of the Internet Assigned Number Authority (IANA) to the Internet Corporation for Assigned Names and Numbers (ICANN).  Some in Congress have expressed their concern about the transition -- worrying that America's decision to relinquish direct contractual control will have adverse global impacts.  I share some of those concerns, but there is a right way to go about working through them, and a wrong way.  On May 8, the House Committee on Appropriations (marking up a report from the Subcommittee on Commerce Justice and State) started down the wrong path.  That Subcommittee is responsible for funding the Department of Commerce and they included language in their report on the bill (see p. 15) that is unhelpful and ineffective.  Here's the language:

Internet Corporation for Assigned Names and Numbers  (ICANN).— The Committee is concerned by NTIA’s announcement of its intent to transition certain Internet domain name functions to the global multistakeholder community. Any such transition represents a significant public policy change and should be preceded by an open and transparent process. In order for this issue to be considered more fully by the Congress, the recommendation for NTIA does not include any funds to carry out a transition of these functions. The Committee expects that NTIA will maintain the existing no-cost contract with ICANN throughout fiscal year 2015.

There are any number of reasons to be skeptical of this language.  Let's leave aside, for the moment, the irony that the Chairman of the Subcommittee, Frank Wolf is widely regarded as an internationalist and so this anti-international effort is out of character.  At least four things leap out from the text that make this language just seem odd and unnecessary:

• The report would require NTIA to keep the current contract in place until the end of the fiscal year 2015.  Of course NTIA has already announced that it intends to keep the contract in place that long;
• NTIA is given no funds to carry out the transition.  So, if enacted in law, NTIA would be disabled from participating in discussions with ICANN about the nature of the transition, precisely at the critical moment when those discussions would be most useful to NTIA, to ICANN and to America;
• Read most strongly, the prohibition on using funds to "carry out a transition" might also include a prohibition on using funds to renew the ICANN contract in any modified form, which might prevent renewal rather than compel it; and
• Finally, since the act of not signing a contract (which is what NTIA proposes to do) costs nothing, there can be no funding prohibition that can effectively prevent NTIA from declining to renew the contract.  The only way for Congress to achieve that would be to affirmatively prohibit the transfer (a result that has nearly no likelihood of occurring).

At a more fundamental level, however, this language sends the wrong message.  The United States achieved a fairly successful result at NetMundial in Brazil -- at least in part because the proposed IANA transition created good will.  This points in the opposite direction, without any real effect -- a lose-lose proposition if ever we saw one.