Name: Pranesh Prakash
Organization: Centre for Internet and Society
Submission ID: 126

Dear Ms. Cooper,
Thank you for providing us this opportunity to respond to the ICG'sdraft proposal.
I am submitting this response on behalf of the Centre for Internet andSociety.
Yours truly,
Pranesh-­‐ -­‐-­‐
Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-­‐india.org | tel: REDACTED
sip: REDACTED | xmpp: REDACTED
https://twitter.com/ REDACTED-­‐-­‐-­‐-­‐-­‐BEGIN PGP SIGNATURE-­‐-­‐-­‐-­‐-­‐
REDACTED-­‐-­‐-­‐-­‐-­‐END PGP SIGNATURE-­‐-­‐-­‐-­‐-­‐

Response by the Centre for Internet andSociety to the Draft Proposal toTransition the Stewardship of theInternet Assigned Numbers Authority(IANA) Functions from the U.S.
Commerce Department’s National
Telecommunications and Information
Administration (NTIA) to the Global
Multistakeholder Community
Prepared by
Pranesh Prakash (Policy Director) andJyoti Panday (Internet Governance Consultant)1
For more than a year now, the customers and operational communities performing key
internet functions related to domain names, numbers and protocols have been negotiating thetransfer of IANA stewardship. India has dual interests in the ICANN IANA Transition
negotiations: safeguarding independence, security and stability of the DNS for development, andpromoting an effective transition agreement that internationalizes the IANA Functions Operator(IFO). Last month the IANA Stewardship Transition Coordination Group (ICG) set in motion apublic review1 of its combined assessment of the proposals submitted by the names, numbers andprotocols communities. In parallel to the transition of the NTIA oversight, the community has
also been developing mechanisms to strengthen the accountability of ICANN and has devised
1

Research assistance was provided by Padmini Baruah and Vidushi Marda, with inputs from Sunil Abraham.

2

two workstreams that consider both long term and short term issues.2 This is our response to theconsolidated ICG proposal which considers the proposals for the transition of the NTIA
oversight over the IFO.

Do the ICG Process and Proposal Meet Global
Expectations?
One way of judging the ICG proposal is to ask the question whether it meets what was
expected as the outcome of this transition? And what was that? That expectation, to put it
simply, is that the United States not having any greater privileges over the running of theInternet’s core infrastructure than any other country. ​Inter alia​,this being an expectation is borneout by the WSIS process, during which the oversized control and influence of the United Statesin global Internet governance, particularly with respect to the was one of the two main issues ofcontention (with the other being the digital divide), and this was alluded to in statements by the
IGP,3 IGC,4 APC,5 the government of India,6 Brazil,7 etc.
2

Jyoti Panday, Transitioning the NTIA Oversight of the DNS Root – Evaluating Progress Made and Problems,
ORF Cyber Monitor, September 9, 2015.
See:​
http://www.orfonline.org/cms/export/orfonline/html/cyber/Cyber-Monitor09.pdf
3Internet Governance Project, 11.2005 Political Oversight of ICANN: A Briefing for the WSIS Summit,
November 2005. See:
http://www.internetgovernance.org/2005/11/01/11-2005-political-oversight-of-icann-a-briefing-for-the-wsis-sum
mit/
4

The Civil Society Internet Governance Caucus demanded, during the WSIS process that:“We recognize that the time has come for a change in the political oversight of the logical Internet
infrastructure….
5. ICANN will negotiate an appropriate host country agreement to replace its California Incorporation,
being careful to retain those aspects of its California Incorporation that enhance its accountability to the global
Internet user community.
6. ICANN's decisions, and any host country agreement, must be required to comply with public policy
requirements negotiated through international treaties in regard to, inter alia, human rights treaties, privacy
rights, gender agreements and trade rules." (2005).
https://www.itu.int/wsis/docs2/pc3/contributions/sca/hbf-29.doc
5Adam Peake, ‘Internet governance and the World Summit on the Information Society (WSIS)’, Association
for Progressive Communications (APC), June 2004, ​http://rights.apc.org/documents/governance.pdf
6"India, on the other hand, decried the fact that a vital global resource should be in the hands of a"non-inclusive, opaque organization not accountable for its actions". Moreover India questioned the fact that all
13 root servers, were in the hands of developed countries."
https://www.itu.int/wsis/newsroom/2/pc2/highlights/25feb.html​. See also, Congressional Research Service,‘The Future of Internet Governance: Should the U.S. Relinquish Its Authority Over ICANN?’, p. 21, August 18,
2015, ​
http://fas.org/sgp/crs/misc/R44022.pdf
7

I​
d.

3

Historical and Political Context Missing from ICG Mandate
The United States government had initially attempted to finish this transition by 2003,
missed that deadline, and during the WSIS process announced in 2004 that it would be done by
2006, and missed that deadline again.8 We have finally come, in 2014, after 16 years of the creationof ICANN and after 16 years of path dependency, at this juncture.
The ICANN-formed ICG sees the US government’s actions very narrowly, as though thegovernment were acting in isolation, ignoring the rich dialogue and debate that’s gone on earlier
about the transition. While it would be no one’s case that political considerations should begiven greater weightage than technical considerations such as security, stability, and resilience ofthe domain name system, it is shocking that political considerations have been completely absent
in the discussions in the number and protocol parameters communities, and have been limited in
the names community. It can be also argued that the certain IANA functions such as Root Zone
Management function have a considerable political implication. It is imperative that the politicalnature of the function is duly acknowledged and dealt with, in accordance with the wishes of the
global community. In the current process the political aspects of the IANA function has been
completely overlooked and sidelined.9
It is important to note that this transition has not been a necessitated by any technicalconsiderations. It is primarily motivated by political10 and legal considerations.11 However, thequestions that the ICG asked the customer communities to consider were solely technical.
Indeed, the communities could have chosen to overlook that, but they did not choose to do so.12
For instance, while the IANA customer community proposals reflected on ​existing jurisdictionalarrangements, they did not reflect on how the jurisdictional arrangements ​should be post-transition,​while this is one of the questions at the heart of the entire transition. Indeed, the names
community’s CWG proposal even proposes ​U.S. jurisdiction as a ​requirement for the8

NTIA, Request for Comments on the Internet Assigned Numbers Authority (IANA) Functions, Departmentof Commerce, 2011 See: ​http://www.ntia.doc.gov/files/ntia/publications/fr ianafunctionsnoi 02252011.pdf
9“The DNS Root Zone Management function is by far the most politically sensitive of the
IANA Functions.” SAC067 Report, pg. 11, ​https://www.icann.org/en/system/files/files/sac-067-en.pdf
10Congressional Research Service, ‘The Future of Internet Governance: Should the U.S. Relinquish Its
Authority Over ICANN?’, See Introduction, also see p. 18, August 18, 2015,
http://fas.org/sgp/crs/misc/R44022.pdf
11 ​

Id.

12

This is not surprising given the composition of “global multistakeholder community” that participated in these
discussions, as seen on the mailing lists: There was hardly any participation from Latin America, the Caribbean,
Eastern Europe, Africa, and relatively little participation from Asia-Pacific (discounting Australia & New
Zealand). It was mainly developed countries from WEOG (Western Europe, with North America, Australia and
New Zealand).

4

post-transition IANA entity/IANA functions operator,13 while this precisely has been one of themost contentious aspects of the existing NTIA ‘open’ calls for award of the IANA contract.
Finally, the NTIA Administrator, in a hearing before the U.S. House of Representatives’s
Energy & Commerce Committee, ​stated that ICANN and IANA remaining in the United States werelikely to be conditions for the transition​.
The global community should take note of this, and should fault such unilateralpre-conditions and a process that allows a single government to place such pre-conditions. The
placing of such conditions makes a mockery of the calls for globalization of the core operations of
the Domain Name System.

Desiring “Minimal Changes” is Political Status-Quoism not Technical
Stability
In multiple customer community discussions, the need for minimal changes has either been
assumed or has been put forth as a desirable characteristic.14 This has been justified as promoting
technical stability of the DNS. However, they are not equivalent, even though they often
overlap. The way that core Internet resources are currently run have arisen largely by historical
accident and not by careful planning. These structures were put in place by U.S. government(Department of Defense and the Department of Commerce) without consulting the global
community. This doesn’t by itself provide a reason to change it, but ​importantly,​
this isn’t by itself
a reason to continue with the way things are.
For instance, having 10 of the 12 operators of the ICANN-approved root are based in asingle jurisdiction. This is highly undesirable. Just as technical resilience demands that not all
root servers be located in the same data centre, legal resilience demands that not all root servers
be located in the same jurisdiction. Given the technical nature of the considerations present in
the IANA customer communities’ responses, they haven’t taken this into account at all. As far as
one can tell, IETF and the CRISP team did not have any discussion (on the IETF’s IANAPLAN
list or on the NRO’s CRISP list) around jurisdiction nor did they consult any lawyers about this.
While the adage, “if it ain’t broke, don’t fix it”, might largely be true, what the IANA
customer communities and resultantly the ICG proposal, have focussed on is whether the DNS isbroken from a ​technical perspective, and have paid scant attention to the question of whether thecurrent ​political and legal ​set-up is ideal.15

13

ICG Report, P1 Annex S, p. 131. Provision, Subcontracting {US Presence Requirements]

14

Exchange between Izumi Okutani and Pranesh Prakash [NRO-IANAXFER] Call for submission of comment
to the combined ICG proposal and the CRISP Team draft response, September, 2015,
https://www.nro.net/pipermail/ianaxfer/2015-September/000653.html
15

The only area where these political questions are being raised, but in a limited manner, are in the discussions
around ICANN accountability.

5

As emphasized earlier, it would be foolhardy to forsake technical stability and resiliency
on the altar of political and legal resiliency. However, it would be equally if not more foolhardy
not to consider the issue of political and legal resiliency ​even when a proposed change does notnegatively impact technical stability and resiliency​, at the altar of status quoism.
Thus, there are problems in the way the ICG has approached the issue, which greatlycompromise the ICG’s proposal.

Narrow Focus on IANA Contract by NTIA and ICG
As noted above, the current set-up of core DNS operations is a historical accident and nota clearly thought-through stable set-up. For instance, the IANA functions contract that ICANN
has with the NTIA does not cover all the functions that IANA currently performs (such as being
responsible for a time-zone database known as tzdata) or the operations of the .INT gTLD.16 Yet,despite one of the possible outcomes being the splitting of the IANA functions, and theconundrum of what would then happen to non-contractual IANA functions, the ICG did notinclude non-contractual IANA functions as part of their deliberations.
Nor did the ICG consider the NTIA’s agreement with Verisign for performing its role as
the root zone maintainer — which is what makes Verisign primus inter pares among theICANN-recognized authoritative root zone operators — because the NTIA had not opened thatup for discussion. Deliberation on the Root Zone Maintainer function is crucial since it plays, insome respects, as important a role if not a more important one than the IANA Functions
Operator.17 After all, the IANA Functions Operator (and thereupon the NTIA) authorizechanges to the root.zone file, while it is the Root Zone Maintainer which actually effectuates thechanges.
There have been suggestions in the past to merge the IFO and Verisign functions related
to root zone management18 or that Verisign should give its responsibilities to the IFO.19 If there isno need20 for a distinct RZM function,21 and the names community proposal has suggested
16

Section C- Description/Specs/Work Statement See:
http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf
17

Milton Mueller, ‘What’s going on between NTIA, ICANN and VeriSign?’ See:
http://www.internetgovernance.org/2015/08/18/whats-going-on-between-ntia-icann-and-verisign/18

Milton Mueller and Brenden Kuerbis, Roadmap for globalizing IANA: Four principles and a proposal forreform: A submission to the Global Multistakeholder Meeting on the Future of Internet Governance. See:
http://www.internetgovernance.org/wordpress/wp-content/uploads/ICANNreformglobalizingIANAfinal.pdf
1920

Supra​​
note 17.

In 2011, CNNIC suggested that a root server could be run by IANA itself, and thus in essence have IANA in
the role of the Root Zone Manager.
http://www.ntia.doc.gov/files/ntia/comments/110207099-1099-01/attachments/CNNIC%20comments%20on%2
0IANA%20Funcionts.pdf

6

automating the RZA role then any proposal related to the management of DNS must ensure thatchanges in the relationships between the three entities accommodate such alternative
arrangements and not continue to enforce the status quo that has persisted since the inception of
ICANN.
Further, Verisign, being an owner of multiple top-level domains, has a clear conflict ofinterest in its role as Root Zone Maintainer. That this is the status quo should not be allowed to
be an argument against changing it. The status quo isn’t sacred, and the status quo doesn’t
guarantee stability of the DNS.
There have also been instances of Verisign slipping up in the performance of its role, as
highlighted by David Conrad, who is currently ICANN’s Chief Technical Officer.22 Lastly,
Verisign, as it is a commercial company with conflicts of interest, does not perform its roletransparently and uses proprietary software in the performance of what should be a public role.
This disallows public scrutiny of the code for bugs and error.23 Yet, these important discussions
relating to security and stability of the DNS were not part of the conversation because the NTIA
did not allow for it and the ICG did not push for it.
By narrowing its focus this way, the ICG lost the ability to have a deliberation based on
logic of DNS operations, and was forced to have discussions on the narrow parameters set by the
NTIA. As the Stability and Security Advisory Committee has noted, “operational relationships
within which the root zone management partners have operated pre-transition will change when
NTIA no longer fulfills the Administrator role. Defining these post-transition relationships will
depend on NTIA’s transition arrangements for oversight of the Root Zone Maintainer functions
currently performed by Verisign.” Subsequently, the NTIA asked ICANN and Verisign tosubmit a joint proposal to it on the removal of NTIA as a party to that agreement. This joint

22David Conrad points to a time when “a bug in Verisign's root zone management software caused anunanticipated change in glue records for zones operated by AFNIC (detected by at least one ccTLD manager
after the root zone had been published IIRC).”https://mm.icann.org/pipermail/cwg-stewardship/2015-January/001458.html
23

As David Conrad notes, “the code Verisign uses, as opposed to code ICANN uses, is not open source so it isdifficult to independently verify”. https://mm.icann.org/pipermail/cwg-stewardship/2015-January/001458.html

7

proposal was not opened up to public participation, and was done ​sub rosa​.24 This by itself ​robs thetransition of both logic (necessary components of a transition were not part of an open discussion), as wellas legitimacy​.

Alternatives
Here are ideas that ought to have been part of the discussion, since they make sense, butwere either chilled because of fear of how the NTIA or the US government / Congress might
react,25 or were feared as not being status-quoist enough.

Splitting of IANA Functions
The Internet Architecture Board, in a submission to the NTIA in 2011 claims that splitting
the IANA functions would not be desirable.26 The IAB notes, “There exists synergy andinterdependencies between the functions, and having them performed by a single operator
facilitates coordination among registries, even those that are not obviously related,” and also thatthat the IETF makes certain policy decisions relating to names and numbers as well, and so it isuseful to have a single body. But they don’t say why having a single email address for all these
correspondences, rather than 3 makes any difference: Surely, what’s important is cooperation andcoordination. Just as IETF, ICANN, NRO being different entities doesn’t harm the Internet,
splitting the IANA function relating to each entity won’t harm the Internet either. Instead will
help stability by making each community responsible for the running of its own registers, rather
than a single point of failure: ICANN and/or “PTI”.
A number of commentators have supported this viewpoint in the past: Bill Manning of
University of Southern California’s ISI (who has been involved in DNS operations since DNS
started), Paul M. Kane (former Chairman of CENTR's Board of Directors), Jean-Jacques Subrenat(who is currently an ICG member), Association française pour le nommage Internet encoopération (AFNIC), the Internet Governance Project, InternetNZ, and the Coalition Against
Domain Name Abuse (CADNA).
The Internet Governance Project stated: “IGP supports the comments of Internet NZ andBill Manning regarding the feasibility and desirability of separating the distinct IANA functions.
Structural separation is not only technically feasible, it has good governance and accountability
24

The Indian government submission to the CWG-Stewardship had noted this relationship and called for therole of RZM to be included in the transition process.
http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf
25

This phenomenon is described very well by independent researcher Rishabh Dara in his submission on the
ICG proposal. See:​
https://comments.ianacg.org/pdf/submission/submission23.pdf
26

IAB response to the IANA FNOI, July 28, 2011. See:
https://www.iab.org/wp-content/IAB-uploads/2011/07/IANA-IAB-FNOI-2011.pdf

8

implications. By decentralizing the functions we undermine the possibility of capture bygovernmental or private interests and make it more likely that policy implementations are basedon consensus and cooperation.”27
Similarly, CADNA in its 2011 submission to NTIA notes that that in the current climateof technical innovation and the exponential expansion of the Internet community, specialisationof the IANA functions would result in them being better executed. The argument is also thatdelegation of the technical and administrative functions among other capable entities (such as the
IETF and IAB for protocol parameters, or an international, neutral organization with
understanding of address space protocols as opposed to RIRs) determined by the IETF is capableof managing this function would ensure accountability in Internet operation.
Given that the IANA functions are mainly registry-maintenance function, they can to alarge extent be automated. However, a single system of automation would not fit all three.
Instead of a single institution having three masters, it is better for the functions to be separated.
Most importantly, if one of the current customers wishes to shift the contract to another
IANA functions operator, even if it isn’t limited by contract, it is ​limited by the institutional design,​
since iana.org serves as a central repository. This limitation didn’t exist, for instance, when the
IETF decided to enter into a new contract for the RFC Editor role. This transition presents thebest opportunity to cleave the functions logically, and make each community responsible for thefunctioning of their own registers, with IETF, which is mostly funded by ISOC, taking on the
responsibility of handing the residual registries, and a discussion about the .ARPA and .INT
gTLDs.
From the above discussion, three main points emerge:● Splitting of the IANA functions allows for technical specialisation leading togreater efficiency of the IANA functions.
● Splitting of the IANA functions allows for more direct accountability, and noconcentration of power.
● Splitting of the IANA functions allows for ease of shifting of the{names,number,protocol parameters} IANA functions operator without affecting
the legal structure of any of the other IANA function operators.

27

Internet Governance Project, Comments of the Internet Governance Project on the NTIA's "Request forComments on the Internet Assigned Numbers Authority (IANA) Functions" (Docket # 110207099-1099-01)
February 25, 2011 See:
http://www.ntia.doc.gov/federal-register-notices/2011/request-comments-internet-assigned-numbers-authority-iana-functions

9

Jurisdictional Resilience
Law and geopolitics are as important a consideration for stability of the Internet as thetechnical infrastructure. This can be seen from multiple instances.
It is the IANA contract that decides who gets to run an internet registry in the event of
the transfer of the NTIA oversight to the IFO it will be within ICANN's power to move theownership of the dot-com to a different entity. While there are processes for such a transfer ofownership28 , concerns arising from these arrangements have been raised, most recently by Russia
during the Ukraine crisis in 2014.29 Further these processes have been actively abused in the pastin cases of Iraq's .IR registry and Afghanistan's .AF registry following the U.S.-led militaryinvasion of both countries.30
It should also be noted that the United States government has also used the fact that
Verisign is incorporated in the United States to extend its jurisdiction on domain names, being
the only country in the world to make this claim on the basis of jurisdiction of DNS registries.
While previously, registering a domain name with a non-U.S. registrar and avoiding U.S.-based
host servers was viewed as sufficient to fall outside U.S. jurisdiction a court order requiring thedomain name registrar to transfer ownership of the domain (or redirect the site) was only
enforceable in the jurisdiction in which it was issued.
In 2012, in the state of Maryland, prosecutors were able to obtain a warrants ordering
Verisign, the company that manages the .COM domain name registry, to redirect the website to awarning page advising that it has been seized by the U.S. Department of Homeland Security.31
This happened with more than 700 websites, ​including those that had been declared legal by foreign
courts (the Spanish courts, in the case of RojaDirecta.com).32 Even domain names registered with
non-U.S. registrars were seized. Of the 672 registries listed in ICANN’s registry directory, 307 are
U.S.-based!33 This means that the United States more than can exercise through the location of
the domain name registry.

28.
Documents concerning the redelegation of these ccTLDs are available at ​http://www.iana.org/reports​

29

Kevin Murphy, ‘Amid Ukraine crisis, Russia scared ICANN might switch off its domains’, DomainIncite ,September 2014,
http://domainincite.com/17373-amid-ukraine-crisis-russia-scared-icann-might-switch-off-its-domains
30

Brian Whitaker​​, ‘.iq test’, The Guardian, Iraq World Dispatch, See: July 5, 2004 See:
http://www.theguardian.com/world/2004/jul/05/iraq.technology
31

Michael Geist, ‘​
All Your Internets Belong to US, Continued: The Bodog.com Case’, March 6, 2012.
http://www.michaelgeist.ca/2012/03/bodog-case-column-post​/
32

David Kravets, ‘Uncle Sam: If It Ends in .Com, It’s .Seizable’, Wired, June 3, 2012. See:
http://www.wired.com/2012/03/feds-seize-foreign-sites/
33

Of the 672 gTLD registries ICANN lists, 307 are US-based (2nd place: Ireland, with 80). September 3, 2015. See:
https://twitter.com/pranesh prakash/status/639462783948484608

10That Verisign's accountability issues related to its RZM function and the conflict ofinterest arising from its role as the dotcom registry under contract with IANA not being
addressed by the operational communities is a serious gap in the internationalizing of the DNS
root. The incentives are structured in a manner which necessitate VeriSign develop and maintaina close relationship with ICANN which is reflected in its proposal of handing over the RZA
function contract to ICANNThe RZA proposal circulated by NTIA and developed by the two parties that havemaximum stake in ensuring the status quo of the DNS root persists, coupled with the problems
associated with plans being developed to remove the IANA contract away from ICANN at afuture date makes this transition incomplete and unworkable at worst and in need of further
deliberation at best.
In order to ensure the legal resilience of the DNS, it is important to have three kinds ofjurisdictional safeguards:● Legal immunity for core technical operators of Internet functions (as opposed topolicymaking venues) from legal sanctions or orders from the state in which they
are legally situated.
● Division of core Internet operators among multiple jurisdictions● Jurisdictional division of policymaking functions from technical implementation
functions.

Following the above precepts would, for instance, mean that the entity that performs therole of the Root Zone Maintainer should not be situated in the same legal jurisdiction as theentity that functions as the policymaking venue. This would in turn mean that either the Root
Zone Maintainer function be taken up Netnod (Sweden-headquartered)34 or the WIDE Project(Japan-headquartered)35 , or that if the IANA Functions Operator(s) is to be merged with the
RZM, then the IFO be relocated to a jurisdiction other than those of ISOC and ICANN. This, as
has been stated earlier, has been a demand of the Civil Society Internet Governance Caucus.
Further, it would also mean that root zone servers operators be spread across multiple
jurisdictions (which the creation of mirror servers in multiple jurisdictions will not address).

The “Global Multistakeholder Community” is Neither Global nor
Multistakeholder.

If the “global multistakeholder community” means those who participate in an open
process, then the ICG comments represent the global multistakeholder community. If the
34

Netnod, ICANNWiki, h​ttps://icannwiki.com/Netnod​.

35

WIDE Project, Wikipedia, ​https://en.wikipedia.org/wiki/WIDE Project.​

11“global multistakeholder community” actually means that the discussions were globally
representative, that there was participation of a variety of actors including civil society andgovernments (and not being primarily industry/technical organizations), then this process is an
abysmal failure.
If one counts participation across the main lists where the final shape of the ICG proposal
were thrashed out (ICANN’s ICG and CWG-Stewardship lists, the NRO’s IANAxfer and
CRISP list, and the IETF’s IANAPLAN), then a total of 239 individuals participated. Of these239, ​
only 98 substantively contributed to the final shape of the ICG proposal, if one takes a countof 20 mails (admittedly, an arbitrary cut-off) as a substantive contribution, with 12 of these 98
being ICANN staff some of whom were largely performing an administrative function.
Of these 98, 39 (or ​1 in 4​) were, as far as one could ascertain from public records, from asingle country: the United States of America.
Of these 98, 77 (or ​8 in 10​) were, as far as one could ascertain from public records,
participants from countries which are part of the WEOG UN grouping (which includes Western
Europe, US, Canada, Israel, Australia, and New Zealand), which only has developed countries.
None of those who participated substantively were from the EEC (Eastern European) group andonly 5 of 98 from GRULAC (Latin American and Caribbean Group).
Of these 98, 77 (or ​8 in 10​) were male and 21 were female, as far as one could ascertain frompublic records.
Of these 98, 76 (or ​8 in 10​) were identifiable as primarily being from industry or thetechnical community, as far as one could ascertain from public records, with only 4 (or 1 in 25​)
being readily identifiable as primarily speaking on behalf of governments.
Lastly, the processes followed by ICANN and the NRO (CRISP) did not allow for equaland open for participation by all relevant parties.

Does the ICG Proposal Meet the ICG’s and NTIA’s
Criteria?
The other set of criteria for judging the ICG proposal are those set by the ICG itself, alongwith those set by the NTIA. Even here, the current ICG proposal falls short.

Questions Concerning the Proposal as a Whole
1) Completeness and clarity: Is the combined proposal complete? Each of the operational
community proposals contains aspects to be completed in the future when the proposal is12

implemented. Is the combined proposal specified in sufficient detail such that it can beevaluated against the NTIA criteria?
a. No, the proposal is not complete. As highlighted above, jurisdiction and otherlegal issues are completely missing from the ICG summary. Only the names
community even proposes what post-transition jurisdiction of the IANA
Functions Operator should be (U.S.), while the ICG and the other two
community proposals ignore this completely.
b. No, the proposal is not clear. Even the basic question of whether ICANN going tobe the IANA Functions operator or is the “PTI” going to be the IANA Functions
Operator is unclear, since the three different proposals see the answer differently.
c. The proposal is not complete since issues relating to root zone management, anessential part of the transition of stewardship of the DNS root zone to the global
multistakeholder community, are not addressed.
d. The formalization of the relationship between the RIRs and the IANA number
server operator needs to be addressed.
e. The proposal is not complete since contingency scenarios, including stress tests,
have not been outlined and discussed in the ICG proposal.
f.

In this regard, we associate ourselves with the comments made by Rishabh Dara,an independent doctoral student, in his submission to the ICG,36 as well as thecomments made in the submission on behalf of the Just Net Coalition by Richard
Hill.37

2) Compatibility and interoperability: Do the operational community proposals work
together in a single proposal? Do they suggest any incompatible arrangements wherecompatibility appears to be required? Is the handling of any conflicting overlaps between
the functions resolved in a workable manner?
a) The answers to the previous question apply here.
b) Further questions should have been asked of the communities, since there was notdefinitive conclusion about IANA remaining a single function. Two of thecustomer community proposals regard ICANN as the IANA Functions Operator,
while the CWG proposal regards the PTI as the IFO.
36

Rishabh Dara, Comments to ICG Proposal See:
https://comments.ianacg.org/pdf/submission/submission23.pdf
37

Richard Hill, on behalf of the Just Net Coalition, Comments to ICG Proposal See:
https://comments.ianacg.org/pdf/submission/submission18.pdf

13c) There is no clarity on how the registries on the IANA.org domain would be
concurrently updated by multiple IANA Functions Operator in the event one of
the communities decides to switch to a different IANA Functions Operator.

3) Accountability: Do the operational community proposals together include appropriate
and properly supported independent accountability mechanisms for running the IANA
functions? Are there any gaps in overall accountability under the single proposal?
a) In response to this question, we associate with the comments made by the Just Net
Coalition in the submission made on its behalf by Richard Hill,38 and with thecomments made by Rishabh Dara in part (3) of his submission to the ICG.39b) The most important accountability mechanism is that of changing the IANA
Functions Operator. While all 3 community proposals envisage this possibility as
part of their contract, there is no clear plan on how it would be operationalized.
As mentioned above, there is no clarity on how the registries on the IANA.org
domain would be concurrently updated by multiple IANA Functions Operator in
the event one of the customer communities decides to switch to a different IANA
Functions Operator.

4) Workability: Do the results of any tests or evaluations of workability that were includedin the operational community proposals conflict with each other or raise possible
concerns when considered in combination?
a) For the reasons outlined in the questions (1) and (2), the ICG proposal as a whole
does not seem workable in its current state.
b) If the current ICG proposal is accepted, and in the future the CSC, after following
its processes, decides to shift to a different IFO, how exactly will that happen?
Will ICANN, in essence, go looking for a replacement for an ICANN subsidiaryor affiliate?
c) In this regard, we wish to associate with the comments made by Rishabh Dara inparts (2) and (6) of his submissions.40

38

Id.

39

Supra ​​
note 34.

40

Supra ​​
note 34.

14

Questions Concerning NTIA Criteria
5) Do you believe the proposal supports and enhances the multistakeholder model? If yes,
please explain why. If not, please explain why and what proposal modifications you
believe are necessary.
a) If the multistakeholder model includes the participation of civil society, academia,
and governments, then no. Given that except the U.S. government,41 and the
U.K. government, few others participate in IETF processes, and given that the
NROs don’t really involve civil society actors or governments (except as NIRs),
the proposal doesn’t support or enhance the “multistakeholder model”.
b) The ICG process has been customer-centric, without clear channels for
non-customer participation except, narrowly, through the inclusion of
non-customers in ICANN’s non-contracting parties house.
c) Given that key elements of the transitions (such as the cooperative agreement for
the Root Zone Maintainer) were kept out of the purview of the ICG process, that
can hardly be called an open multistakeholder process.

6) Do you believe the proposal maintains the security, stability, and resiliency of the DNS? If
yes, please explain why. If not, please explain why and what proposal modifications you
believe are necessary.
a) There is no explanation as to why — other than status-quoism — between
multiple alternatives, all of which maintain the security, stability, and resiliency of
the DNS, the alternatives present in the current proposal was chosen.
b) The proposal does not negatively affect the security of the DNS, but does not
ensure the resiliency of the DNS. A proposal that meets the criterion of resiliency
must cover not just the fact of the various possibilities allowed under that proposal
but the practical effects of one of those possibilities actually happening. In
concrete terms, while the ICG proposal does contemplate the possibility of each of
the communities might change their IFO from the PTI to another entity, thepractical effect of doing so is unclear from the proposal. Will iana.org still be hostto the registries, as is the question of having a single

41

U.S. agencies such as the National Security Agency and National Institute for Standards and Technology havebeen the most regular and entrenched governmental participants in the IETF process. More recently, otherentities like CNNIC from China have also been participating sporadically.

15c) The ICG proposal does not include tests for resiliency and stability, some ofwhich the CWG has been working on.

7) Do you believe the proposal meets the needs and expectations of the global customers andpartners of the IANA services? If yes, please explain why. If not, please explain why andwhat proposal modifications you believe are necessary. Please indicate if you are acustomer or partner of the IANA services.
a) The consolidated proposal as it stands is reflective of a truly global
multi-stakeholder Internet community. The numbers and protocols proposals
were developed with limited involvement from few participants (for instance,
there was hardly any substantive discussion on these on LACNIC’s Internet-Gov
list)42 . In developing the consolidated proposal the ICG has not gone beyond the
proposals submitted by the operational communities. 43 While this may be alimitation of its scope this has implications on the legitimacy of themultistakeholder process that it has been charged with overseeing.
b) It is important that the ICG should also evaluate if the processes convened by theoperational community were inclusive and received a varied participation bystakeholders outside if the operational communities themselves. One way of
doing this would be to see how many positive responses the ICG gets frommembers of RIRs and IETF and compare that to the overall membership /participation levels in these entities.
c) While the transition may have been pegged on the involvement of the “global
multistakeholder community”, the number of members and observers werelimited to a minuscule and few were involved in drafting the initial proposal whileother members were relegated to either agreeing or disagreeing with proposals thathave been developed. Further, there was no consistency in assimilating or
capturing dissenting opinions. For example, the process adopted by ICG was
flawed as it did not require the three communities to distinguish between the'proposal development process' and 'approval process'.44

42Internet-Gov Mailing List Archives, ​https://mail.lacnic.net/pipermail/internet-gov/​.

43

This has been a source of complaint by observers such as Richard Hill and Tamer Rizk.

44

Rishabh Dara, Comments to the ICG, see pt. b under Process Related Comments.See:
https://comments.ianacg.org/pdf/submission/submission23.pdf

168) Do you believe the proposal maintains the openness of the Internet? If yes, please explain
why. If not, please explain why and what proposal modifications you believe arenecessary.
a) It is unclear what is meant by “openness” of the Internet. If the question can beread as: “Does the proposal disallow any one government from having
disproportionate influence on the DNS”, then the answer is no. The proposal
does not challenge the U.S.-centricism of DNS operations, and as such it does notenhance the openness of the Internet.

9) Do you have any concerns that the proposal is replacing NTIA’s role with agovernment-led or inter-governmental organization solution? If yes, please explain why
and what proposal modifications you believe are necessary. If not, please explain why.
a) Our main concern is that while the NTIA’s role is diminishing, the powers of the
U.S. government aren’t.

This transition is a conditional one, with the

pre-conditions having been laid down by the NTIA, and with the possibility of the
U.S. Senate adding additional conditions via the DOTCOM Act45 , which has
been passed by the U.S. House of Representatives so far. So, if the question isphrased narrowly with regard to NTIA’s role, then no, there is no concern that agovernment-led or intergovernmental organization solution is being proposed by
the ICG. However, even after a transition on the lines broadly outlined by the
ICG proposal, the U.S.-centricism of DNS operations will continue, not just
implicitly, but even explicitly in the proposal by the CWG. This will subject the
DNS operations to U.S. sanctions, to U.S. courts, to the U.S. Congress, and tounilateral U.S. executive action. Given the fact that the ICG proposal does notdemand any form of legal immunity for the core technical operation of the DNS
system, it does not preclude governmental interference in the DNS system.

10) Do you believe that the implementation of the proposal will continue to uphold the
NTIA criteria in the future? If yes, please explain why. If not, please explain why and what
proposal modifications you believe are necessary.
45

Domain Openness Through Continued Oversight Matters (DOTCOM) Act of 2015. June 10, 2015. See:
http://docs.house.gov/meetings/IF/IF00/20150616/103649/BILLS-114805ih.pdf

17a) The NTIA’s criteria, some of which are unstated (such as their statement to theHouse Committee that U.S. jurisdiction is an important aspect of DNS stability
and resilience) are not necessarily just.
b) The NTIA’s criteria include convening a “multistakeholder process to develop thetransition plan”, which, as demonstrated above, hasn’t been accomplished inreality even though on paper it might be.

Questions Concerning ICG Report and Executive Summary
11) Do you believe the ICG report and executive summary accurately reflect all necessary
aspects of the overall proposal? If not, please explain what modifications you believe arenecessary.
a) As explained above, there are interoperability-related issues between the
proposals. It seems that in those cases where there is a mismatch or lack of clarity
with regard to interoperability, the CWG proposal has been given primacy among
the three proposals.

General Questions
12) Do you have any general comments for the ICG about the proposal?
a) Any evaluation of the consolidated proposal from the operational communities orplans to implement the transition must consider if it achieves the vision of“globalization of ICANN and IANA functions, towards an environment in which
all stakeholders, including all governments, participate on an equal footing.” The
statement stems from a call issued by leaders of organizations responsible forcoordination of the Internet technical infrastructure globally who met inMontevideo, Uruguay, to consider current issues affecting the future of the18Internet in 2013. 46 As the transition process has been led by the NTIA criteria it iscritical that the ICG consider the issues and values highlighted in the statement.
b) The Montevideo Statement had stressed the importance of globally coherent
Internet operations, and warned against Internet fragmentation at a national level.
In the present ICG proposal the process for redelegation of ccTLDs is one
example of an issue that has been left unaddressed and has the potential to lead tocalls for internet fragmentation along national lines. The ICG must consider thiscritical issue and we have addressed the same in detail below.
c) The statement also highlighted the “undermining of the trust and confidence ofInternet users globally due to recent revelations of pervasive monitoring andsurveillance”. In our opinion the NTIA transition announcement andsubsequently the ICG proposal have both kept the Root Zone Maintainer (RZM)
function outside of the scope of this transition. As this function is critical tomaintaining the security and stability of operations of the DNS system, thepresent proposal does not address the issues around pervasive monitoring andundue influence of one national government over the RZM role. We therefore
urge that this proposal is sent back to review and further deliberation by theoperational communities so that it may include the transition of the RZM role
within the scope of transition arrangements.
d) Finally, at Montevideo the leaders also “identified the need for ongoing effort toaddress Internet Governance challenges, and agreed to catalyze community-wide
efforts towards the evolution of global multistakeholder Internet cooperation.”
The NTIA by unilaterally setting the criteria for the successful transition of the
IANA Functions Operator (IFO) and by precluding the multistakeholder
community from engaging on the transition of the NTIA oversight as the RZA
and evolution of the RZM function has not achieved the “global multistakeholder
Internet cooperation’ that had been envisioned pre-transition in 2013.
e) As noted by Byron Holland in the ccNSO submission on the ICG proposal, thecurrent draft contains many factual errors.
In conclusion, the current ICG proposal is flawed both procedurally and substantively,
thanks in part to the reports it had as its inputs, in part due to the process the ICG followed and46

Montevideo Statement on the Future of Internet Cooperation, 07 October 2013, See:
http://www.internetsociety.org/news/montevideo-statement-future-internet-cooperation

19

decisions that it made, and in part due to the NTIA’s handling of the process. The proposal
further entrenches U.S. interests in core DNS operations, rather than globalizing them; it islargely status quoist; it fails to capture and it fails to address many of the most importantconsiderations that ought to be part of the transition.