Name: Parminder Jeet Singh

Organization: Just Net Coalition

Submission ID: 19

Please find attached a political comment from the Just Net Coalition regarding the proposed
IANA transition plan. Please note that this only addresses the question 12 inviting generalcomments.
We are submitting separately a technical comment.
Parminder Jeet Singhfor the Just Net Coalition
http://justnetcoalition.org/

IANA Stewardship Transition Proposal - Public Comment Form
Disclaimer: The ICG will not use the information collected for any purpose other than analyzing
public comments. Submitters’ names, affiliations, and comments will be public.
Identifying Information* Indicates required field
First Name * Parminder
Last Name * Jeet Singh
Email Address *Country/Economy: Kenya and Switzerland
Organization: Just Net Coalition
General Questions
This comment is submitted on behalf of the Just Net Coalition 1 (JNC) which comprises several
dozen civil society organizations and individuals from different regions globally, concerned withissues of Internet governance, from the perspective of all human rights, including democracy
and economic and social justice.
We have responded separately to the other structured questions posed by the ICG.
Question 12. Do you have any general comments for the ICG about the proposal?
As explained in more detail below, the IANA Transition process is fatally flawed, for thefollowing reasons:
1. It was not legitimate for the US to decide unilaterally what process to use for thetransition to what should be the political oversight of ICANN in a structure adequately
representative of the global public, along with the necessary techno-administrativechanges.
2. The chosen process is not legitimate.
3. The outcome of the process is not acceptable and does not reflect a sufficiently broadconsensus, nor does it transition ICANN oversight to the global public, along with thenecessary techno-administrative changes.
4. It is further not legitimate for the US to decide unilaterally whether the outcome is or is
not acceptable.
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http://justnetcoalition.org

Points 1, 2 and 4 above relate to violations of the principle of democracy, that is, to the right totake part in governance decisions either directly or through freely chosen representatives. 2 NonUS citizens cannot take any part in decisions made by the US government, so those decisions
should not determine the outcome of what is clearly an issue that has global implications.
Point 3 above is developed in more detail below. In a nutshell, the proposal empowers a set ofICANN insiders, largely working in the interests of US-based and allied businesses, 3 to control
what is a global public resource. Meanwhile the US in any case retains all the political oversightthat it would ever need over ICANN through its jurisdictional control. This is not acceptable.
To summarize, we reject the transition proposal in toto.
Without prejudice to that overall rejection, explained below, we have responded separately to thestructured questions posed by the ICG.
The process fails to achieve its basic geopolitical objective
What has been called the IANA transition process is in our view fundamentally flawed, as it
flows from some illegitimate political interests and focuses on protecting them. These interests
are primarily those of the US government that intransigently refuses to give up its unilateralpolitical oversight over what has emerged as perhaps the most important global infrastructure
today.4 These interests are in nexus with commercial interests of global business, much of it USbased; it is this combination of interests that has driven the process; and, predictably enough, theresults of it simply serve them.
The IANA transition should basically have been about shifting from, what in the current
circumstances is, illegitimate and unacceptable unilateral political oversight by the US over theInternet's technical and logical infrastructure (see the Tunis Agenda of the World Summit on theInformation Society, or WSIS) to legitimate political oversight by the global public. However,the process seems to have been rigged and closely chaperoned from the beginning toward whatapparently are predetermined outcomes, with minor room left here and there to fill in details, aspossible variables, but with no option to introduce any structural changes. Whereas, being thecentral Internet-related geo-political controversy since the early WSIS days, structural changes toICANN oversight should have been the real objective and outcome of this process. What we now
have is mere eyewash and, to the extent that it is being projected as a structural change that was
the long-standing global demand, it can be considered instead a step backwards.
Let us first make clear what were our expectations for the process.
1. Any technical policy making – which indeed can be done by a narrow group of experts
and/or immediately involved 'stakeholders' – requires appropriate political oversight thatis fully representative of the concerned (larger) public.
2. In the case of ICANN, such political oversight should be representative of the global
2

See article 21 of the Universal Declaration of Human Rights
An overall analysis of the issues can be found at:
http://www.theregister.co.uk/2015/08/04/removal_us_government_from_internet_control/4
http://www huffingtonpost.com/carl-bildt/who-govern-internet_b_7922948.html
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public. An appropriate structure must be evolved in this regard. It must be configured in
an arms-length manner to avoid ad hoc political interference.
3. This first of all requires that ICANN cannot be answerable to jurisdiction of the US. It
must be incorporated under international law, with appropriate jurisdictional immunities.
We tend to understand the fear of direct inter-governmental oversight, which of course wasexpressly excluded by NTIA's5 framing conditions. However, there have been proposals on thetable that provided alternative ways of representing the global public. 6 Proposals along thoselines were presented to the process, including by an official advisor to the process, but given noheed.
The current final proposals on the table fail on all the above counts. We therefore suggest thatthese be rejected out of hand by all right-thinking parties, and that effort be renewed towardfinding a genuine solution to this long-standing problem of US unilateral oversight of ICANN.
Accepting, even as an interim solution, something that does not address, at all, the key issues will
only set back the political process of resolving the very important question of appropriate
globally-democratic ICANN oversight.
Just removing NTIA from the root zone change authorization process achieves little. The US
government's judicial, legislative, and some important executive agencies, retain complete
jurisdiction over ICANN's processes and decisions. What happens when one of these agencies
asserts its right to influence ICANN's processes and decisions – something that is bound tohappen sooner or later – is a question that is never answered. Pivotally, it has not been answeredin the current process, even though it was raised repeatedly, including by some advisors
officially appointed to the process.
A process with glass walls, underground tunnels and invisible hands
Having not addressed what was the principal objective of the 'transition' – the issue of politicaloversight of ICANN, which centrally includes the jurisdiction issue – the IANA process cannot
be evaluated to have succeeded nor on subsidiary issues/elements. In fact one of the biggest
defects of the process (whether deliberate or not) was that it did not follow the normal process ofdealing with issues in an appropriately hierarchical manner, as is logical, especially for politicalissues that involve distribution of power. While key, hierarchically-higher issues were still open,
the process would rush to sort out lower level details, sometimes right down to absurd minutiae,
and work hard to come out with solutions. These decisions on details would then by default
constrain and thus decide the higher hierarchical issue in a particular manner. We saw thishappen again and again throughout the process, which thus left us completely dissatisfied withthe process, as much as with its result.
The whole process was so tightly and opaquely 'controlled' that it can serve as a useful case study
about how an apparently 'open process' can turn out to be much worse than an institutionalized
and, to that extent, constrained/closed process. Turning out a pre-determined result is something
more associated with closed or semi-closed processes. However, in this particular case it was its
openness and non-institutionalized form that was 'innovatively' used, whenever required, to turn56

the National Telecommunications and Information Administration, the cognizant agency of the US government
See for example http://content.netmundial.br/contribution/democratising-global-governance-of-the-internet/164

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the process toward directions that were considered suitable by the 'invisible hands' (though also
not all that invisible). The 'openness' of the process meant that, whenever it suited the 'invisible
hands', a process was forked, new processes were instituted, and so on, all at a bewildering pace.
Most of it seemed to get done in the name of the 'community,' which ghost rented the entirespace and process, even when there was never an adequate response to the question “what is thecommunity?”, a question that some of us did ask repeatedly.
Refusing to answer clearly the question 'what is the community?', when everything seemed to getdone in its name, is even more surprising when at many other points the process became
ludicrously legalistic and precise, often in pursuit of what appeared to be deliberate complexity.
Whenever a knotty political issue cropped up, heavy complexity got thrown at it ‘til things
reached a point where only those who were in a position to employ considerable committed
resources could remain tuned. Subsequently – after applying the 'exclusion by required time /human resources method' – some detailed solutions for the matter were hammered out. This
more than anything else contributed to foreclose the hierarchically-higher political issue that had
been the original problem.
Complementing this kaleidoscopic play with 'openness' were several more brazen intrusions into
the process by the two primary interested parties. It was never explained how a party which hadsuch a deep interest in the outcomes, namely ICANN (there was considerable demand that thefinal process should come up with strong checks on ICANN – indeed the whole process was
about oversight of ICANN), could be entrusted with conducting the process of developing
recommendations for IANA transition. Throughout the process, whenever discussions tended
toward certain 'uncomfortable' directions, one would hear rumors of ICANN's displeasure etc.;
and, magically, things would turn away toward 'more comfortable' directions, even if taking
some torturous, basically time-consuming steps, trying to make the shift look relatively logical.
But the end was always very predictable – things moved in the direction that ICANN wascomfortable with.
Similar things happened with regard to the other (bigger) principal in the process, the USgovernment. Statements were frequently received about what the US wants or does not want,from congressional hearings, speeches of key government officials, and so on. And the process
would immediately take the cue. One good example of how the whole process worked on'unstated orders or interests' was the manner in which the ICANN's jurisdiction question wassimply never considered in any appropriate length and depth. This, even though keeping ICANN
in the US jurisdiction was not among the initial framing conditions that NTIA laid for theprocess.
Complete arbitrariness in process-related decisions, and deliberate complexity in conducting theprocess, were two complementing methods exercised right from the start. It first became clear
when the globally recognized geopolitical issue of 'ICANN oversight' was disingenuously
presented as a technical issue about managing the root zone. This gambit was further
compounded when the various involved committees were almost fully stacked with ICANNinsiders, whereas it was actually the global public outside ICANN that needed to be consulted onproper political oversight of ICANN.

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As it proceeded, the main process got suddenly forked, creating a different line for ICANN
accountability. This in itself carried a very strong suggestion, almost a confirmation, even before
the matter was officially decided, that ICANN would indeed be given the IANA function, or
rather oversight over itself, which is really no oversight. (Even while, as explained above, the US
retains all the political powers that it would ever need in order to be able to, for example, remove
a country's country-code top-level domain name from the Internet.) Any hope of the transition
process resulting in any kind of genuine international oversight was already as good as dead bythis stage.
If anything could still get past this rather impregnable defensive formation, it would immediately
run into the all-powerful legal teams (paid by ICANN) who promptly filled up any possible
remaining spaces that could even remotely look like providing some chance to move toward a
politically effective direction. And the legal views were more or less final, contributing to themethod or stratagem described earlier of detail being more important than structural issues.
Throughout, US legalese triumphed over what was supposed to be a geo-political discussion,
process and outcome.
It also requires mentioning here that even within such a tightly controlled environment, thediscussions that constituted the process were so overwhelmingly dominated by Northern actors,
by far most of them from the US, that it does not carry even prima facie legitimacy. Making theexcuse that the process was open to anyone to join more than anything else simply serves as anindictment of what the process really was!
It may be a step backwards
Significantly, not only has the process failed to transition political oversight of ICANN from theUS to the global public, it has dangerously left ICANN in a situation where it is even lessaccountable than it was before. With ICANN dominated by the domain name and otherinterested businesses, this is not a tenable situation. US oversight at least created somesemblance of a political back-stop and therefore accountability. A few years back the USgovernment refused to accept ICANN's decision to let Verisign increase the prices for .com
registration. Where is such a check now? There have been a number of other decisions by
ICANN that seemed to have no better purpose than to improve its own bottom-line at theexpense of the public. Left with no real oversight in the current proposal on the table, we fearthat ICANN would become even more commercial-minded, in its own interests and in those of
closely involved businesses, at the expense of the larger public interest.
The currently proposed accountability processes only involve a relatively tightly-knit ICANNcommunity. While such an arrangement may have some use in checking any brazen misuse ofpower by the ICANN board, it will have no effectiveness in addressing larger structuralproblems to ensure that ICANN works in the global public interest, rather than just the interest ofa small set of actors closely involved with ICANN.
The current proposals therefore achieve nothing, and may even have significant negative
consequences. We therefore reject them in toto. Further, we are greatly disappointed by themanner in which the whole process has been conducted, which serves to reduce further any5

confidence that one might have had in ICANN’s being able independently to manage thetechnical and logical aspects of this most important of global infrastructures.
The US retains all the oversight that it needs over ICANN; and ICANN insiders, to a good extent
working for US business interests, retain their very advantageous control over ICANN. It is awin-win for these two parties, which is hardly surprising since these two parties completelycontrolled the whole 'transition process'. There were minor co-optations here and there, whichwere embarrassingly few and weak. It is a perfect case study of control structures with glasswalls, underground tunnels and invisible hands, which is what the so called 'open process' reallyturned out to be.
In sum: the US seems to have agreed to leave the full range of ICANN's policy andadministrative activities to the clique of ICANN insiders, without any effective accountability, inexchange for the latter's continued acceptance or non-questioning of the US' jurisdictional
control over ICANN, which is enough to serve US political purposes. The whole process appears
to be a fixed match between these two parties, as the rest of the world stood by and watched.
We therefore appeal to all parties, especially civil society groups and non-US governments, tofully reject these proposals. They go against all democratic norms, and they endanger theirpolitical interests (meaning that of the publics that they represent). Even a partial or qualified
acceptance of these proposals will greatly set back the long outstanding, and increasingly urgent,geo-political demand and effort for democratizing the governance of this key globalinfrastructure.
These are our main political points. Since some of us had the opportunity to observe the process,we critique in a separate submission many points about the details of the process, as per theformat of the questionnaire that has been provided. However, as said above, we reject both theprocess and its outcomes in toto, and our detailed points merely attest to our larger conclusions
described here.

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