Name: Richard Hill

Organization: Just Net Coalition

Submission ID: 18

Please find attached a technical comment from the Just Net Coalition regarding the
proposed IANA transition plan. We are submitting separately a political comment.
Richard Hill for the Just Net Coalition

IANA Stewardship Transition Proposal - Public Comment Form
Disclaimer: The ICG will not use the information collected for any purpose other than analyzing publiccomments. Submitters’ names, affiliations, and comments will be public.

Identifying Information* Indicates required field

First Name * Richard
Last Name * Hill
Email Address * REDACTEDCountry/Economy: Kenya and Switzerland
Organization: Just Net Coalition

Questions Concerning the Proposal as a Whole
This comment is submitted on behalf of the Just Net Coalition1 (JNC) which comprises several
dozen civil society organisations 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 submitted a separate comment that explains in some detail why, in our view, thisentire process is fatally flawed and unacceptable. In addition, we respond here to the structured
questions posed by the ICG.
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 implemented. Is the combined proposal specified in sufficient detail such that it can beevaluated against the NTIA criteria?

No, the combined proposal2 is not complete, because, as stated in question 1 above, two of theoperational community proposals are not complete. The missing parts of the proposals are
essential elements and it is not possible to evaluate properly the “combined proposal”.
The addressing proposal cannot be evaluated until the SLA referred to in that proposal (seeparagraph 66 of the combined proposal) is agreed, because many elements that are critical to
the IANA functions for addressing will be specified in that SLA. We associate with the detailed
criticism found at: http://forum.icann.org/lists/icg-forum/msg00020.html
The names proposal is not complete because the issue of the intellectual property rights
associated with the IANA function (IANA trademark and “iana.org” domain name) is not resolvedin that proposal, see paragraphs X013, 35, and 65 of the combined proposal.

1 http://justnetcoalition.org
https://www.ianacg.org/icg-files/documents/IANA-stewardship-transition-proposal-EN.pdf

2

Further, we associate with the criticism3 of the names proposal presented at:
http://mm.ianacg.org/pipermail/icg-forum ianacg.org/2015-June/000001.html
CWG-Stewardship has itself admitted4 that there were opposing views regarding the names
proposal, so the final version reflects consensus of CWG-Stewardship, not necessarily broadconsensus of the global multistakeholder community.
And the key issue of maintenance of the root zone file is not addressed, see paragraphs X016,
41 and 55 of the combined proposal.
Fundamentally, the proposal as a whole is not ready for implementation, because of thevarious incomplete aspects mentioned above. Thus it would be premature to submit the
proposal to NTIA, because NTIA requested5 that the proposal as a whole be ready for
implementation.
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?

As the ICG itself has noted in paragraphs X013 and 35 of the combined proposal, the issue ofthe IANA trademark and the “iana.org” domain name has not yet been resolved. This is amaterial issue that must be resolved before the combined proposal can be properly evaluated.

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?

According to the NTIA’s original announcement6, its intent was “to transition key Internet domainname functions to the global multistakeholder community7”. The proposal does not achieve thisgoal. On the contrary, it transitions the key Internet domain name functions to an organ that is
dominated by one stakeholder group: industry that is involved with domain names and3

And we note that, contrary to established practice in ICANN, the final CWG-Stewardship proposal was not
published for public comment before being adopted. And this despite the fact that CWG-Stewardship has publicly
stated that it is common practice in an ICANN context to publish a final proposal for public comment whensubstantive changes are made to the draft proposal, which was the case here. The CWG-Stewardship statement is
at: http://mm.ianacg.org/pipermail/internal-cg ianacg.org/2015-August/001334.html (note that it is couched in
the negative, that is, a contrario).
4
See http://mm.ianacg.org/pipermail/internal-cg ianacg.org/2015-August/001334.html
5
http://mm.icann.org/pipermail/internal-cg/2015-February/003020.html
6
http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-namefunctions
7
We consider the term “global multistakeholder community” used by NTIA as a biased and inexact representationof what is more properly called as the global public. However, since this is the term used in the IANA transition
process, we will continue to use it in our submission but with the stated reservation.

addresses. This can be seen from paragraphs 307-314 of the proposed changes to ICANN’s
bylaws and structure8.
We associate with the comments found at: http://forum.icann.org/lists/comments-ccwgaccountability-draft-proposal-04may15/msg00018.html

4)Workability: Do the results of any tests or evaluations of workability that were included in
the operational community proposals conflict with each other or raise possible concerns
when considered in combination?

The proposals from the operational communities do nothing other than to enshrine the statusquo. Thus, from an operational point of view they are workable. But, as noted above, that was
not the purpose of the exercise. The purpose of the exercise was to replace NTIA’s oversight of
the IANA function with oversight by the global multistakeholder community. That goal is not
attained by the proposal. So, in that sense, the overall combined proposal is not workable.
Further, the names proposal is not workable. it can be characterized as "much ado aboutnothing": it uses many pages of very detailed text to enshrine the status quo, apart fromaccountability changes mentioned in paragraph 1106. PTI will be fully controlled by ICANN, so
there is no meaningful separation and no real change with respect to the current situation. In
particular, there will be no change in jurisdiction (see paragraph X005 and 07), so PTI will be
subject to US law, as is the case today for the IANA function. This means that, in effect, theUnited States maintains its asymmetric role with respect to the management of domain names
and addresses (PTI would have to obey US court orders and US laws), thus negating theobjective of internationalizing the management of Internet domain names and addresses.
The lack of meaningful separation between ICANN and the IANA functions operator is a fatal
flaw in the names proposal. In addition, we associate with the detailed criticism of the names
proposal found at: http://mm.ianacg.org/pipermail/icgforum ianacg.org/attachments/20150625/3459ce38/attachment.pdf
Worse, the proposals regarding improving accountability are such that it would be essentially
impossible for ICANN to move outside of the USA9. This is not acceptable.

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.

No, the proposal does not support or enhance the multistakeholder model. The proposaltransitions oversight of the IANA function from the US government to ICANN constituencies
which are dominated by the domain name and address industry. That industry is a small part of
the global multistakeholder community. Worse, the ICANN processes are typically heavily
influenced by a small clique of insiders who represent the interests of companies active in the8

See the report of CWG-Accountability, at https://www.icann.org/en/system/files/files/ccwg-draft-2-proposalwork-stream-1-recs-03aug15-en.pdf
9
See paragraphs 242 ff. of the report of CWG-Accountability, at
https://www.icann.org/en/system/files/files/ccwg-draft-2-proposal-work-stream-1-recs-03aug15-en.pdf

domain name and addressing business in one way or another. This is the opposite ofsupporting and enhancing the multistakeholder model.
Further, the governance mechanisms envisaged in the proposal are not consistent with themultistakeholder model outlined in the Tunis Agenda, and this because in the proposal
governments would not be able to exercise their proper role and responsibilities regarding public
policy matters: they are relegated to a purely advisory role within ICANN10 and consequently
cannot have an appropriate oversight role regarding the IANA function.

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.

No, the proposal does not maintain security, stability and resiliency of the DNS. On the contrary,
it gravely threatens resiliency because the domain name and address industry is given adominant role, without adequate checks and balances. And it threatens stability because manystates are likely to consider that it threatens their national interests for the DNS to be unilaterally
overseen by the domain name and address industry, so they may make arrangements foralternative DNS resolution systems.
Further, the “casting in stone” of the USA as the seat of ICANN11 and the IANA function may beunacceptable to many states. This threatens stability and resiliency because it gives the US
Congress the ability to pass laws that would directly affect the management of the DNS: since
ICANN and the IANA operator would be based in the USA, US courts would issue orders thatwould be easily enforced.

7)

Do you believe the proposal meets the needs and expectations of the global customers
and partners of the IANA services? If yes, please explain why. If not, please explain why
and what proposal modifications you believe are necessary. Please indicate if you are acustomer or partner of the IANA services.

No. As we have indicated previously, the actual customers and partners of the IANA services
should exercise oversight through the well-known and well-proven mechanism of being
members of the organization that provides the IANA function. All comparable organizations are
membership organizations (in the true sense of the concept, not the degenerate one-member
version proposed for ICANN), so there is no valid reason not to adopt such a structure. We
reiterate our proposal12 in this respect.
10Note also that, at a US Congressional hearing, the ICANN CEO made it clear that the GAC will remain a purely
advisory body. See 1h17’ of the video stream at: http://energycommerce.house.gov/hearing/internet-governanceprogress-after-icann-53
11
See paragraphs 242 ff. of the report of CWG-Accountability, at
https://www.icann.org/en/system/files/files/ccwg-draft-2-proposal-work-stream-1-recs-03aug15-en.pdf
12
http://forum.icann.org/lists/icg-forum/msg00009.html

8)

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.

No, the proposal does not maintain the openness of the Internet. As noted above, it hands
oversight of the IANA functions to the domain name and address industry, which is not
representative of the global multistakeholder community. We, and others, have repeatedly
pointed out what needs to be done, and the proposal should be modified accordingly: there
must be true separation of the IANA function from ICANN, governance should be performed
through a membership structure, and the IANA function must not be under US jurisdiction(ideally it would be immune from any national jurisdiction, alternatively it could be in ajurisdiction whose government and parliament are less likely to intervene). We have alreadysubmitted specific proposals13.

9)

Do you have any concerns that the proposal is replacing NTIA's role with a governmentled or inter-governmental organization solution? If yes, please explain why and what
proposal modifications you believe are necessary. If not, please explain why.

The proposal perpetuates the asymmetric role of the USA, because it obliges ICANN and the
IANA function to remain in the USA and to be subject to US laws and US courts. The goal oftransitioning oversight to the global multistakeholder community is not met.
Indeed, even if NTIA's direct role is removed, the US government has full jurisdictional andlegislative authority over ICANN and the IANA operator. Therefore, the proposed transition fails
fully to remove the US government from oversight of ICANN and the IANA function.

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.

No, as noted above the solution will not uphold the NTIA criteria.
NTIA clearly asked for oversight to be transitioned to the global multistakeholder community.
However the current proposal envisages no, or a weak, role for the global community as such,
because governance of ICANN and the IANA operator will be dominated by ICANN
constituencies, that is, by the ICANN community which is dominated by the domain name andaddressing industry.

13

http://forum.icann.org/lists/icg-forum/pdfXXrCnTxCwW.pdf

Therefore contrary to the key NTIA requirement, oversight would not be transitioned to theglobal multistakeholder community.

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.

No, the report and executive summary do not accurately reflect all necessary aspects. As noted
above, they gloss over the incompleteness of the proposals from two of the operational
communities. And they fail to do justice to two key issues: (1) the jurisdiction in which ICANN
and the IANA function should be located and (2) what will happen regarding operation andmaintenance of the authoritative root zone file.
The ICG correctly states in paragraph X009 that each of the proposals from the operational
communities achieved consensus according to the rules of those communities. But if fails tonote that that does not necessarily indicate that the proposals had broad support from the global
multistakeholder community, which is an NTIA requirement14.
The IETF held that its proposal achieved “rough consensus”. “Rough consensus” is a term of art
within IETF and it cannot be compared to the common use of the term “consensus”. Thus
“rough consensus” within IETF cannot be equated to consensus (or even broad support) of the
global multistakeholder community.
As explained in more detail in the response to question 12 below, the names and addresses
proposals achieved consensus within the groups chartered to prepare those proposals, but
those groups were not fully open. So consensus within those groups cannot be equated toconsensus (or even broad support) of the global multistakeholder community.
Further, the ICG violated its own rules15 by publishing the names proposal before the relevantgroup, CWG-Stewardship, had an opportunity to address an objection16 sent directly to the ICG
and forwarded by the ICG to CWG-Stewardship. Worse, the ICG co-chair sent the ICG views17
regarding that objection to CWG-Stewardship before the CWG-Stewardship considered them.
We associate with the cited comments at: http://mm.ianacg.org/pipermail/icgforum ianacg.org/2015-August/000003.html

General Questions
14

http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-namefunctions
15
https://www.ianacg.org/icg-files/documents/Community-Comments-Handling-1May15-final.pdf
16
http://mm.ianacg.org/pipermail/icg-forum ianacg.org/2015-June/000001.html
17
http://mm.ianacg.org/pipermail/icg-forum ianacg.org/2015-August/000003.html

12)

Do you have any general comments for the ICG about the proposal?

This entire process has been flawed from the start, because it was based on a unilateraldecision of the US government. The NTIA did not seek public comment regarding its proposal
for the transition. If there had been public consultation, then perhaps some people might havepointed out that it might have been better to avoid mandating ICANN to organize a process
whose outcome could, in principle, materially affect ICANN. This is not purely a theoreticalconsideration: some of the proposed transition measures could affect ICANN.18 It is manifestly
inappropriate to expect an interested party, ICANN, to run a process that is supposed to beopen and impartial.19 Further, the US government intervened during the process.20
And the process will be fundamentally flawed at the end, because the final decision
regarding whether or not to adopt a proposal will be made unilaterally by the US government.21
For sure the US government will evaluate whether or not, in its view, there is broad support fromthe global multistakeholder community, but, given the historical background22, it is not
appropriate that the US government makes a determination of whether or not there isconsensus for a particular proposal.
Further, while the IETF process for the IANA transition was fully open, the same is not the casefor the ICANN processes dealing with names and accountability, nor for the NRO process
dealing with addresses.
ICANN created cross-community working groups, whose members were selected by ICANN.
Other people could join the group, but as participants, not as full members. Some think that thedistinction is not significant, but we disagree. Under ICANN's rules, only members have full18

See for example
http://www.internetgovernance.org/2015/06/28/the-iana-trademarks-the-transition-puzzle-piece-thatrefuses-to-fit/
http://www.internetgovernance.org/2015/06/04/power-shift-the-ccwgs-icann-membership-proposal/
19

For examples of how this created at a minimum an appearance of conflict of interest, see:
http://www.internetgovernance.org/2015/05/07/the-gulf-of-tonkin-icann-board-responds-tomonopoly-allegations/
http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal04may15/pdfXMRLCzslox.pdf
http://mm.icann.org/pipermail/accountability-cross-community/2015-July/003835.html
http://mm.icann.org/pipermail/accountability-cross-community/2015-July/003864.html
http://mm.icann.org/pipermail/accountability-cross-community/2015-July/003896.html
http://mm.icann.org/pipermail/accountability-cross-community/2015-July/003959.html
http://mm.icann.org/pipermail/accountability-cross-community/2015-July/003960.html

20

See for example
http://www.ntia.doc.gov/blog/2015/stakeholder-proposals-come-together-icann-meeting-argentina
http://www.internetgovernance.org/2015/06/22/icann-accountability-present-future-and-past/#comment-40234
http://www.ip-watch.org/2015/06/22/experts-debate-iana-transition-designing-in-a-straitjacket-or-securingstability/
21
See http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150506/36816b5b/LettertoICGMay60001.pdf
22
Which includes the unilateral assertion of its right to oversee the IANA function that the US government madeback in 1998. For a complete account of the events, see http://www.amazon.com/Ruling-Root-InternetGovernance-Cyberspace/dp/0262632985

decision-making rights. So, in our view, the ICANN processes were not fully open. We associatewith the criticism found at: http://forum.icann.org/lists/icg-forum/msg00011.html
While discussions in the RIRs were fully open, decisions regarding the addressing part of the
proposal were made by a small team (CRISP) nominated by the RIRs. While CRISP did solicit
inputs, in the end consensus was determined solely on the basis of the views of the CRISP
team members. Again, in our view this was not a fully open process.
Further, the process has been unduly influenced by the US Congress.23 Indeed, NTIA has
recently indicated, in response to queries from the US Congress, that "maintaining security andstability" of the IANA function will likely require that ICANN and the IANA operator remain in the
USA and be subject to US laws and US courts.24
CWG-Stewardship has publicly stated that its work was influenced by what it thought the US
government wanted: “We believed that the IANA Stewardship Transition proposal would be
more likely to be supported by the U.S. Government in a timely manner if jurisdiction was notchanged at the outset.”25

23

See for example https://www.congress.gov/bill/114th-congress/senate-resolution/71/text
http://judiciary.house.gov/index.cfm/2015/5/ip-subcommittee-to-hold-icann-oversight-hearing
http://judiciary.house.gov/index.cfm/2015/5/hearing-stakeholder-perspectives-icann
http://energycommerce.house.gov/hearing/stakeholder-perspectives-iana-transition
http://mm.icann.org/pipermail/accountability-cross-community/2015-March/001939.html
http://fas.org/sgp/crs/misc/R44022.pdf
http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal04may15/pdfJZ0aRwwmZN.pdf
http://mm.icann.org/pipermail/accountability-cross-community/2015-June/003695.html

24

http://energycommerce.house.gov/hearing/internet-governance-progress-after-icann-53 During thishearing, the NTIA Administrator said that a condition for the transition would likely be that ICANN and
IANA remain in the US, see the video stream at 45'57 and 46'50. See also the statement by Rep. Walden
at 24’28.

25

See http://mm.ianacg.org/pipermail/internal-cg ianacg.org/2015-August/001334.html