Name: Puneeth Nagaraj & Gangesh Varma
Organization: Centre for Communication Governance National Law University Delhi
Submission ID: 113

Please find attached our comments in the prescribed format.
Thanking youBest Regards
Puneeth Nagaraj& Gangesh Varma-­‐Centre for Communication Governance
National Law University Delhi-­‐-­‐
Centre for Communication Governance
National Law University Delhi
Dwaraka Sector 14
New DelhiComments on the Proposal to Transition the Stewardship of the Internet
Assigned Numbers Authority (IANA) Functions from the U.S. Commerce
Department’s National Telecommunications and Information Administration(NTIA) to the Global Multistakeholder Community~ Puneeth Nagaraj & Gangesh Varma,
Centre for Communication Governance, National Law University Delhi

The Proposal of the IANA Stewardship Coordination Group (ICG) offers a limited space
to articulate comments. Keeping in mind the criteria laid down by the NTIA and thelimited brief of the ICG in evaluating proposals, the Centre for Communication
Governance submits the following comments. We reserve our comments on someissues given the stage at which these comments are being made.1 However, given thestage at which the IANA Transition process is, we believe the issues raised here are ofparamount importance and must be addressed before the proposal is sent to the ICANNboard.
Root Zone Management
First, the issue of root zone management has been addressed in a piecemeal fashionand results in ambiguity. The oversight function of the NTIA with regard to the root zone
once the PTI is created is proposed to be eliminated and this results in ambiguity. The
NTIA’s role as the (Root Zone Administrator) RZA currently involves(a) Verifying that ICANN (as the IANA Functions operator) has followed
established policies and procedures in processing a change request, and then(b) Authorizing modifications to data and resources.2
According to the ICANN Security and Stability Advisory Committee (SSAC) Report, theNTIA performs its verification function as RZA inter alia for root zone changes,
1

These include our comments on the issue of jurisdiction (listed under Work Stream 2), and thelegitimacy of the transition process initiated through the unilateral declaration by the NTIA.
2
See https://www.icann.org/en/system/files/files/sac-067-en.pdf at pg. 11.

registration (WHOIS), Data changes, delegation and re-delegation of TLDs. Accordingto this report, “Root Zone Management entails non–trivial and potentially immediate risk
to the operation of the Internet as a whole, as it may involve changes to the apex of thepublic namespace upon which all Internet users and their applications rely”3.
The ICANN and VeriSign in their joint proposal4 state that the cooperation agreement
between the NTIA and VeriSign will be replaced by an agreement between ICANN andVeriSign, and the need for a Root Zone Administrator (RZA) will be removed. This joint
proposal has been developed in an opaque fashion and lacks multistakeholderengagement as it has been kept outside the purview of the ICG with no scope for publiccomment. The IANA Transition proposal also suggests that post transition noauthorization for root zone changes would be needed5. If such an operation is possible,
we have a few concerns regarding the NTIA’s functions and their changed form after theIANA transition:1) The rationale behind having a RZA with oversight over the IANA functions evenafter considerable automation in the process was to protect the stability, security
and resilience of the Internet by adding a layer of audit and verification forenhanced security and accountability. While the same concerns still exist:a) Is there any reason to eliminate the process entirely?
b) In the absence of an oversight role, Is there a system ofchecks and balances to review the root zone management?
2) Who will be responsible for oversight over changes to the Root Zone file once theICANN and VeriSign begin to operate it jointly?
The VeriSign/ICANN proposal in response to NTIA’s request on root zone
administration also calls for a three month period of parallel operation after which the3Id.
See http://www.ntia.doc.gov/files/ntia/publications/root zone administrator proposalrelatedtoiana functionsste-final.pdf.
5See IANA Transition Proposal at pg. 48. Also see http://www.internetgovernance.org/2015/08/18/whatsgoing-on-between-ntia-icann-and-verisign/
4NTIA will hand over the RZM functions to ICANN if the functioning is satisfactory.6 While
the proposal posits that monthly reports on the transition will be published on the ICANN
website, NTIA holds the final seal of approval on whether the transition is satisfactory. In
this context, we recommend the clear criteria or standards for NTIA’s approval in theinterests of transparency.
Root zone management is an integral component of the IANA function7. Yet, this has
been only partially addressed in the proposal. The RZA function and oversight as
discussed above requires to be clearly articulated. Further, we see it as critical to thetransition, that the agreement or any other arrangement between ICANN and VeriSign
must be open to comments by the multistakeholder community, and subject to similar
qualifying tests as prescribed by ICG.
The role of the PTI and ICANN with respect to RZA post transition has already beenbriefly discussed in the proposal8, yet the proposal failed to neither address thetransition of the RZA function nor address the oversight concerns which will directly
impact the security, stability and resiliency of the network. With the ICANN coming out
with a proposal on its own, the role of the community has ostensibly diminishedespecially on an important function like RZA.9 For these reasons, the ICG proposal on
RZA is neither complete nor clear.

6Id, at p. 5.
In November 2014 alone, the NTIA received 47 requests for root zone file changes, 30 requests for root
WHOIS database changes, and 22 requests for delegation/re-delegation of TLDs. See
http://www.ntia.doc.gov/files/ntia/publications/ntias role root zone management 12162014.pdf
8See IANA Transition Proposal, at pp. 48-49
9This is especially so since by controlling the RZA, the NTIA had in the past reserved the right to contract
with a party other than ICANN for the IANA functions. For this reason, the RZA function post-transition
should have some sort of community oversight. See for a discussion, David Post and Danielle Kehl,“Controlling Internet Infrastructure: The IANA Transition and Why it Matters for the Future of the Internet,
Part I”, at pp. 16-17.
7‘Global Public Interest’ mandate

Our second concern is with regards to the lack of clarity on the ‘global public interest’mandate. This mandate is contained in the articles of incorporation10, by-laws11 and theAffirmation of Commitments (AoC)12 of the ICANN. These fundamental documents referto acting in ’public interest’ as one of the defining ideals of the ICANN. Yet, there
appears to be no clarity as to what form such a mandate would carry in a PostTransition IANA (PTI).
The importance of the term ‘public interest’ is emphasized by the CCWG’s
Accountability Proposal which has asked for the retention of Sections 3,4 and 8- of
which Sections 3 and 4 mention public interest, from the AoC in the by-laws.13 However,there is very little understanding as to what public interest means in the context of theICANN and PTI functions. The meaning of ‘public interest’ has been a subject of debate
within the ICANN and there has been no consensus on the definition of the term. For
example, the Development and Public Responsibility Department within ICANN
attempted to define public interest, through the Strategy Panel on Public Responsibility
Framework as follows:“global public interest in relation to the Internet as ensuring the Internet becomes,
and continues to be, stable, inclusive, and accessible across the globe so that all
may enjoy the benefits of a single and open Internet”14.
The Panel report also acknowledges that “there is a need to define particular areas offocus and target topics, regions, and stakeholders that need to be addressed in relation
to ICANN’s responsibility to serve the global public interest.”15. As evidenced by the10

See articles 3 and 7 of the Articles of Incorporation. available athttps://www.icann.org/resources/pages/governance/articles-en
11
Public interest is one of the “Core Values” of ICANN as per Section 2 in Article I of the ICANN by-laws.
12
See paragraphs 3, 4 and 9.1 of the ICANN AoC which require that the DNS coordination activities ofthe ICANN be carried out in public interest.
13
CCWG- Accountability 2nd Draft Proposal on Work Stream 1 Recommendations, at p. 72.
14
See https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf at pg. 415Ibid.

GNSO session during ICANN 52 Meet in Singapore16 achieving a consensus on adefinition of ‘public interest’ has been difficult due to multiplicity of parameters andvariation in conception, yet without some framework or guidelines, the public interest
mandate would be meaningless.
Since the ICANN bylaws will remain largely unchanged through this transition process,clarifying the meaning of a ‘core value’ of the ICANN is important. This would also beconsistent with the NTIA requirement for the transition process, that the ICG proposal
must support and enhance the multistakeholder model. Clarifying the meaning of such a
critical term will strengthen the multistakeholder engagement as the various
stakeholders will be then be presented with a clearer standard against which they may
evaluate the public interest considerations of their actions.
While the work of the Strategy Panel on Public Responsibility Framework will help
infuse public interest ideas in the functioning of the ICANN, at the stage of transition it
needs to be supplemented by a more clearly articulated understanding of the term
‘public interest’ at the level of the ICANN Board, the communities, and in oversightbodies like the CSC and IFR. Our request here is that the ICG could consider the scopeof the ‘global public interest’ mandate at the board level and identify its possible
implications for the PTI and the supporting and advisory organizations.

Contracting between ICANN, PTI and Communities
Third, it is unclear as to who the communities will contract with once the PTI is formed.
Currently, the three communities contract directly with the ICANN. Once the transition iscompleted the proposal is ambiguous about whether the communities’ contract with thePTI or the ICANN. While the names community proposal suggests contracting with a
newly created entity i.e. the PTI, the numbers and protocols community proposals
suggest continuing to contract with ICANN. The overall proposal does not clearly16

See https://singapore52.icann.org/en/.../tue.../transcript-ncuc-10feb15-en.pdf.

specify whether the ICANN is expected to sub-contract to the PTI. This could possibly
result in discordance in the IANA functions. Furthermore, if ICANN were to sub-contract
the IANA functions to PTI, the mandate should clearly express such requirement. Froma governance point of view, clarity is required to attribute responsibility for the functions
that would rest with either the primary or secondary contracting party. This level ofuncertainty also affects the interoperability of the proposal.
The issue of contracting also affect the nature of power exercised by the ICANN in themanagement of the DNS as the IANA Functions Operator (IFO). In view of the possiblelack of primary responsibility on ICANN and the lack of external oversight measures aclearer exposition of the contracting structure is required.

Annexure I

ICG Questions:
Questions concerning the proposal as a whole
1.Completeness and clarity: Is the combined proposal complete?

We believe the proposal is neither complete nor clear. First, there needs to be a better
understanding of the meaning of public interest. Second, there needs to be greater clarity
around RZA functions, the transition of the RZA functions and whether there will be some
sort of oversight. For these reasons, the ICG proposal fails the first requirement.
2. Compatibility and interoperability: Do the operational community proposals work
together in a single proposal?
We believe that the proposal does not work together as a single proposal and each
community’s proposal continues to remain significantly disjunct from the other. This is withparticular reference to the fact that although at this point it is unclear, it appears that thenumbers and protocols community wishes to contract with ICANN while only the names
community is open to contract with the PTI. Further there is also ambiguity in the reason
and rationale behind the contracting structure.
3. Accountability: Do the operational community proposals together include
appropriate and properly supported independent accountability mechanisms forrunning the IANA functions?
Our comments on the CCWG proposal discuss some of the issues related to accountability
in greater detail. In the present proposal, without a clear understanding of the meaning of
public interest, the contracting relationship with the communities and the oversightmechanisms of the RZA functions, the proposal fails on accountability. The question ofwhether PTI or ICANN contracts with the communities is crucial from an accountability
perspective. If ICANN were to sub-contract the function to PTI it would effectively reduce

ICANN’s accountability to the communities. This is why there should be greater clarity onthese issues.
4. Workability: Do the results of any tests or evaluations of workability that wereincluded in the operational community proposals conflict with each other or raise
possible concerns when considered in combination?
We do not believe that the three community proposals collectively work as one as there aredifferences in the community proposals that need to be overcome. As the names
community has pointed out and we have discussed above, it is unclear as to who thecommunities will contract with for IANA functions PTI. Further, on the question ofjurisdiction, the protocols community seems to have a different view from the other two.
While we do reserve our comments on jurisdiction for this round, we believe the lack ofconsensus between the communities on this question is problematic from a workability
perspective.

Annexure II
Questions Concerning NTIA Criteria
1. 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 youbelieve are necessary.
Yes. The proposal supports a model stakeholder model. However, it is important to note that theview there is a single multistakeholder model that is applicable across institutions is contested.
The multistakeholder model adopted by the ICG through the transition must be subjected tostrict standards of openness, transparency, and accountability. These aspects would bediscussed in the CCWG Accountability Proposal and therefore we reserve our detailed
comments for the CCWG Accountability Proposal.
2. Do you believe the proposal maintains the security, stability, and resiliency of theDNS? If yes, please explain why. If not, please explain why and what proposal
modifications you believe are necessary.
No. The security, stability and resiliency of the DNS among other factors is dependent on
integral aspects like root zone management which have not been adequately dealt with in theproposal. We suggest that the ICG may recommend to the NTIA that the parallel process on theICANN/VeriSign Proposal be open to public comment. Further, we also recommend to the NTIA
that the parallel process be integrated within the Transition proposal and therefore, include theICANN/ VeriSign proposal within the scope of a new expanded mandate of the ICG. This could
possibly address many issues that were left out of the scope of discussions, including further
globalization of the concerned institutions and the root zone management.
3. 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 a customer or partner of the IANA services.

No. Insufficient clarity on contract between the respective communities and the ICANN or PTI
would result in lack of accountability in addition to poor operationalization of the IANA functions.
The nature of contract would also directly affect the consumer’s right against the service
provider which in this case lacks clarity. We are not a customer or a partner of the IANA
services.
4. 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 indicate clear details on Root Zone Management, which is essential
to the realization of a free and open internet. Defining the scope and meaning of the public
interest mandate of ICANN also goes some way in aligning the IANA functions in a manner thatmaintains the openness of the internet.
5. 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.
No. The proposal clearly does not result in a government-led or inter-governmentalorganization. The only concern raised is the role of the Governmental Advisory Committee(GAC). As this is extensively discussed in the CCWG Accountability Proposal, we exclude ourobservations from this comment.
6. Do you believe that the implementation of the proposal will continue to uphold theNTIA criteria in the future? If yes, please explain why. If not, please explain why and what
proposal modifications you believe are necessary.
No. The inherent ambiguity in the proposal and its operation as discussed above can result in
the abuse of multistakeholder models, and inefficient functioning of the DNS.

Questions Concerning ICG Report and Executive Summary
7. 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.
Yes. While the ICG report reflects all aspects of the overall proposal, it fails to do justice to thelarger objective to transferring the oversight mechanism to a global multistakeholder community.
The ICG report due to its restrictive mandate has not discussed the management of the Root
Zone completely. By excluding the ICANN/VeriSign proposal from public comment andmultistakeholder deliberations, the process fails to address a highly controversial yet crucial
aspect of the transition. Further the report while briefly touching upon the issues of jurisdiction
without offering detailed discussions has only highlighted the lack of consensus between theProtocol Parameters community and the Names and Numbers Communities on this aspect.
General Questions
8. Do you have any general comments for the ICG about the proposal?
We appreciate the open, transparent and consultative process adopted by the ICG. We also
recommend that the ICANN/VeriSign proposal for Root Zone Management be open forcomment and consultation in a similar fashion. While this is seemingly outside the scope of theICG, the implications for the DNS and its security, stability and resiliency warrant the inclusion ofa holistic discussion of the management of the root zone.
Further we note with interest that the NTIA has decided to extend the term of its contract withICANN. This gives an opportunity for the proposals to be further negotiated and issues ironedout before submission as a consolidated proposal to the NTIA. This means timeline for transition
must be modified. However, such modification of the timeline must not result in an indefinite
delay of the transition process. It must also be cautioned that the transition process should
prevent new structures put in place from limiting the scope of the greater globalization of theinstitutions involved and further continuous improvements on accountability through WorkStreams.