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PRIVATIZING THE INTERNET ASSIGNED NUMBER 

AUTHORITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 17, 2016 

Serial No. 114–128 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California7 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

ROBERT E. LATTA, Ohio 

Vice Chairman 

JOHN SHIMKUS, Illinois 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

MICHAEL F. DOYLE, Pennsylvania 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

JERRY MCNERNEY, California 

BEN RAY LUJA ́ N, New Mexico 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 4 

Prepared statement .......................................................................................... 5 

Hon. Robert E. Latta, a Representative in Congress from the State of Ohio, 

prepared statement .............................................................................................. 5 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 6 

WITNESSES

Steve DelBianco, Executive Director, NetChoice .................................................. 7 

Prepared statement .......................................................................................... 10 

Answers to submitted questions ...................................................................... 148 

Alissa Cooper, Ph.D., Chair, IANA Stewardship Transition Coordination 

Group .................................................................................................................... 28 

Prepared statement .......................................................................................... 30 

Answers to submitted questions ...................................................................... 154 

Sally Shipman Wentworth, Vice President of Global Policy Development, 

Internet Society .................................................................................................... 53 

Prepared statement .......................................................................................... 55 

Answers to submitted questions ...................................................................... 158 

Audrey Plonk, Director, Global Cybersecurity and Internet Governance Policy, 

Intel Corporation .................................................................................................. 72 

Prepared statement .......................................................................................... 74 

Answers to submitted questions 1 ................................................................... 162 

Matthew Shears, Director of Global Internet Policy and Human Rights 

Project, Center for Democracy & Technology .................................................... 89 

Prepared statement .......................................................................................... 92 

Answers to submitted questions ...................................................................... 163 

David A. Gross, Former U.S. Coordinator, International Communications and 

Information Policy, Wiley Rein LLP ................................................................... 96 

Prepared statement .......................................................................................... 98 

Answers to submitted questions ...................................................................... 166 

SUBMITTED MATERIAL

Statement of Brett D. Schaefer and Paul Rosenzweig, the Heritage Foundation, March 17, 2016, submitted by Mr. Walden ............................................... 116 

Statement of the Internet Infrastructure Coalition, March 13, 2016, submitted 

by Mr. Walden ...................................................................................................... 132 

Report of the International Center for Law & Economics’ Innovation Policy 

Research Program, ‘‘In ICANN We Trust: Assuring Accountable Internet 

Governance,’’ White Paper 2016–1, submitted by Mr. Walden ........................ 134 

1Ms. Plonk did not answer submitted questions for the record by the time 

of printing. 

(1) 

PRIVATIZING THE INTERNET ASSIGNED 

NUMBER AUTHORITY 

THURSDAY, MARCH 17, 2016 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to notice, at 10:19 a.m., in room 

2123, Rayburn House Office Building, Hon. Greg Walden (chairman of the subcommittee) presiding. 

Members present: Representatives Walden, Latta, Barton, Shimkus, Blackburn, Lance, Guthrie, Olson, Bilirakis, Johnson, Long, 

Collins, Eshoo, Clarke, DeGette, McNerney, and Pallone (ex officio). 

Staff present: Ray Baum, Senior Policy Advisor, Communications 

and Technology; Rebecca Card, Assistant Press Secretary; David 

Redl, Chief Counsel, Communications and Technology; Charlotte 

Savercool, Professional Staff Member, Communications and Technology; Dan Schneider, Press Secretary; Greg Watson, Legislative 

Clerk; Christine Brennan, Democratic Press Secretary; Jeff Carroll, 

Democratic Staff Director; David Goldman, Democratic Chief Counsel, Communications and Technology; Jerry Leverich, Democratic 

Counsel; Lori Maarbjerg, Democratic FCC Detailee; and Ryan 

Skukowski, Democratic Policy Analyst. 

Mr. WALDEN. I call to order the Subcommittee on Communications and Technology. For the witnesses’ benefit, we expect to have 

votes on the House floor fairly soon. So our goal this morning is 

to start on time and try and get through the members’ opening 

statements. And then we can get to you all. So I will try and move 

pretty rapidly through this. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Two years ago, NTIA made the announcement it would work to 

transition the stewardship of the Internet Assigned Numbers Authority to an international, multistakeholder community. This announcement ignited significant questions and concerns of the potential risks associated with a transition. ‘‘Would a new model 

allow for the capture by any one Government?’’ ‘‘What are the national security implications?’’ ‘‘How can ICANN be held accountable 

for its decisions without NTIA oversight?’’ These were all very serious questions that many of us had. 

Since NTIA stated its intent, this subcommittee has held 

thoughtful discussions in an effort to get to answers. Through a series of hearings, we have asked these questions to fully understand 

2 

the existing contract, the risks that should be considered with a potential transition, and what safeguards are necessary to reduce any 

threat. We received input from NTIA Administrator Strickling, 

ICANN, and the stakeholders who participate in the global community. These discussions have proved valuable to the process. And 

many of the concerns and mechanisms addressed here have become 

an integral part of the community’s work. 

I have referenced the importance of the affirmations of commitments, especially the requirements that ICANN remain 

headquartered in the United States, and that the multistakeholder 

community conduct an ongoing review of ICANN’s operations. We 

have seen the value of using stress tests to identify policies needed 

for an accountable governing structure. Fundamental bylaws that 

require a super majority to change, actionable mechanisms that 

empower the community, and an independent review of board decisions, these are all ideas that can hold the ICANN board accountable for its actions and resistance to capture. 

I am relieved to hear that ICANN is committed to these accountability measures regardless of whether the transition progresses or 

not. These policies are critical to ensuring that ICANN remain a 

stable steward of IANA and must be part of any successful transition. 

Last week marked a major milestone in the IANA transition 

process as the multistakeholder community transmitted its proposal to the United States Government for review. The entire community deserves recognition and appreciation for the countless, 

countless hours of hard work and commitment that went into 

crafting this plan. 

Now we embark on the next stage of our work, review of the proposal. As we dive into the specifics of the transition proposal today, 

it is important to acknowledge the technical foundation the transition rests upon. In recent months, a country code top-level domain 

experienced a denial of service attack on its root infrastructure. To 

ameliorate the impact of this attack, the country wanted to add 

servers to its root, but such a change would require the approval 

of IANA. Due to delays in this routine procedure, the domain was 

inaccessible for days. 

Technical functions of the Internet should move at Internet 

speed, not the speed of the U.S. bureaucracy. This is the challenge 

the transition looks to solve without introducing new 

vulnerabilities into Internet governance. The GAO report, initiated 

by leaders of this committee, gives us some guidance in our efforts, 

as it recommended NTIA establish an evaluation framework to 

guide the analysis of the proposal. So I applaud the NTIA for accepting this good-Government approach to guarantee its requirements are met. 

As NTIA embarks on its work, I want to reiterate what I have 

been saying throughout this entire process, this transition is far too 

important to be rushed by any artificial deadline. Much work still 

remains and, if needed, NTIA should take the steps to extend the 

contract. It is more important to get this done right than to simply 

get it done. 

Lastly, while we await the analysis of the proposal from NTIA, 

it is important to stress the important role that Congress plays 

3 

during this process. The bipartisan work reflected in the DOTCOM 

Act maintains our oversight authority to ensure the requirements 

of a transition, established by NTIA, are met by the proposal. I appreciate the commitment from NTIA Administrator Larry 

Strickling to provide Congress with the time and opportunity to review this proposal. It is critical to the future of the Internet that 

we ensure a transition will meet our Nation’s and the world’s 

needs. The stakes are simply too high. 

So today, we will hear from a panel of stakeholder witnesses on 

their perspective of the multistakeholder process and the transition 

proposal. Many of you have participated directly in this process. 

And we congratulate you and appreciate the work that you have 

done. We are fortunate to have your expertise, not only there but 

before us today. Thank you. 

So thanks for sharing your insight and being here to answer any 

questions that remain. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

Two years ago, NTIA made the announcement it would work to transition the 

stewardship of the Internet Assigned Numbers Authority to an international multistakeholder community. This announcement ignited significant questions and concerns with the potential risks associated with a transition. Would a new model allow 

for the capture by any one Government? What are the national security implications? How will ICANN be held accountable for its decisions without NTIA oversight? 

Since NTIA stated its intent, this subcommittee has held thoughtful discussions 

in an effort to get answers. Through a series of hearings, we’ve asked these questions to fully understand the existing contract, the risks that should be considered 

with a potential transition, and what safeguards are necessary to reduce any 

threats. We received input from NTIA Administrator Strickling, ICANN, and the 

stakeholders who participate in the global community. These discussions have 

proved valuable to the process and many of the concerns and mechanisms addressed 

here have become an integral part of the community’s work. I’ve referenced the importance of the Affirmations of Commitments, especially the requirements that 

ICANN remain headquartered in the United States and the multi-stakeholder community conduct an ongoing review of ICANN’s operations. We’ve seen the value of 

using ‘‘stress tests’’ to identify policies needed for an accountable governing structure. Fundamental bylaws that require a supermajority to change, actionable mechanisms that empower the community, and an independent review of board decisions 

are all ideas that can hold the ICANN Board accountable for its actions and resistant to capture. I am relieved to hear that ICANN has committed to these accountability measures regardless of whether the transition progresses or not. These policies are critical to ensuring that ICANN remain a stable steward of IANA and must 

be a part of any successful transition. 

Last week marked a major milestone in the IANA transition process as the multistakeholder community transmitted its proposal to the U.S. Government for review. 

The entire community deserves recognition and appreciation for the countless hours 

of the hard work and commitment that went into crafting this plan. Now we embark 

on the next stage of our work: review of the proposal. 

As we dive into the specifics of the transition proposal today, it is important to 

also acknowledge the technical foundation the transition rests upon. In recent 

months, a country code top-level domain experienced a denial of service attack on 

its root infrastructure. To ameliorate the impact of this attack, the country wanted 

to add servers to its root, but such a change would require the approval of IANA. 

Due to delays in this routine procedure the domain was inaccessible for days. Technical functions of the Internet should move at Internet speed, not the speed of the 

U.S. bureaucracy. This is the challenge the transition looks to solve without introducing new vulnerabilities into Internet governance. 

The GAO report initiated by leaders of this committee gives us some guidance in 

our effort as it recommended NTIA establish an evaluation framework to guide the 

analysis of the proposal. I applaud NTIA for accepting this good-Government apVerDate Mar 15 2010 12:54 Mar 27, 2017 Jkt 037690 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\USERS\WLAUFERT\DESKTOP\114X128PRIVATIZINGIANAXPDFMADE WAYNE
4 

proach to guarantee its requirements are met. As NTIA embarks on its work, I want 

to reiterate what I have been saying throughout this entire process. This transition 

is far too important to be rushed by any artificial deadline. Much work still remains, 

and if needed, NTIA should take the steps to extend the contract. It is more important to get this done right, than to simply get it done. Lastly, while we await the 

analysis of the proposal from NTIA, it is important to stress the important role that 

Congress plays during this process. The bipartisan work reflected in the DOTCOM 

Act maintains our oversight authority to ensure the requirements of a transition established by NTIA are met by the proposal. I appreciate the commitment from NTIA 

Administrator Larry Strickling to provide Congress with the time and opportunity 

to review the proposal. It is critical to the future of the Internet that we ensure a 

transition will meet our Nation’s—and the world’s—needs. The stakes are simply 

too high. 

Today we’ll hear from a panel of stakeholder witnesses on their perspective of the 

multistakeholder process and the transition proposal. Many of you have participated 

directly in this process and we are fortunate to have your expertise. Thank you for 

sharing your insight and being here to answer any questions that remain. 

Mr. WALDEN. At this point, they have called votes on the House 

floor. And given the new protocols on the House floor about 15- 

minute votes being 15 minutes, I am going to recess the committee. 

And we will return for further opening statements after votes are 

concluded. Thank you very much. 

[Recess.] 

Mr. WALDEN. We are going to reconvene the Subcommittee on 

Communications and Technology for purposes of taking opening 

statements. But we are apparently going to wait for Ms. Eshoo, 

who is on her way back, I know, from votes to join us. So we will 

go back into recess. 

[Recess.] 

Mr. WALDEN. We will reconvene the Subcommittee on Communications and Technology. And I will recognize the gentleman from 

New Jersey, the ranking member of the full committee, for his 

statement. And then we will go back and forth. Mr. Pallone, please 

go ahead. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Chairman. And also thanks to the witnesses. I know many of our witnesses were in Morocco last week 

for the ICANN meeting. So I appreciate your willingness to testify 

so quickly after your return. 

The National Telecommunications and Information Administration first contracted with ICANN in 1998 to perform the technical 

functions that have made the Internet such a powerful platform. At 

the time, the Clinton administration suggested eventually 

privatizing these functions. And now we are on the cusp of completing the transition. But the members of this subcommittee have 

made clear that this transition cannot take place without measures 

in place to keep ICANN accountable for its actions. 

I would like to congratulate the Internet’s multistakeholder community on reaching an agreement on a final IANA transition and 

accountability proposal. I know that getting to this point took an 

impressive amount of work. But the work is not done. New bylaws 

for ICANN need to be completed to make the proposal legally binding. And now that we have a proposal, NTIA can begin officially 

reviewing it. 

5 

This committee crafted the bipartisan DOTCOM Act, which 

would have given Congress an official role in this process. And the 

House passed this legislation. But, unfortunately, the bill has not 

made it through the Senate. Nonetheless, I am pleased that NTIA 

Assistant Secretary Strickling is committed to comply with the 

ideas behind the DOTCOM Act even if it isn’t signed into law. 

And again, I look forward to hearing from our witnesses. Your 

testimony will help to inform our own understanding of the IANA 

transition proposal. Thank you. And I yield back, Mr. Chairman. 

[The prepared statement of Mr. Pallone follows:] 

PREPARED STATEMENT OF HON. FRANK PALLONE, JR. 

Thank you, Chairman Walden and Ranking Member Eshoo, for holding this hearing today. Thank you also to the witnesses for being here. I know many of you were 

in Morocco last week for the ICANN meeting, and so I appreciate your willingness 

to testify so quickly after your return. 

The National Telecommunications and Information Administration first contracted with ICANN in 1998 to perform the technical functions that have made the 

Internet such a powerful platform. At the time the Clinton administration suggested 

eventually privatizing these functions. And now we are on the cusp of completing 

the transition, but the members of this subcommittee have made clear that this 

transition cannot take place without measures in place to keep ICANN accountable 

for its actions. 

I’d like to congratulate the Internet’s multi-stakeholder community on reaching an 

agreement on a final IANA transition and accountability proposal. I know that getting to this point took an impressive amount of work. 

But the work is not done. New bylaws for ICANN need to be completed to make 

the proposal legally binding. And now that we have a proposal, NTIA can begin officially reviewing it. 

This committee crafted the bipartisan DOTCOM Act, which would have given 

Congress an official role in this process. The House passed this legislation but unfortunately the bill has not made it through the Senate. Nonetheless I am pleased that 

NTIA Assistant Secretary Strickling has committed to comply with the ideas behind 

the DOTCOM Act-even if it isn’t signed into law. 

I look forward to hearing from our witnesses. Your testimony will help to inform 

our own understanding of the IANA transition proposal. 

Thank you. 

Mr. WALDEN. The gentleman yields back. The Chair recognizes 

the vice chair of the subcommittee, Mr. Latta, for opening comments. 

Mr. LATTA. Mr. Chairman, I am going to submit my testimony 

for the record, if I could ask unanimous consent, save a little time 

for our witnesses. 

[The prepared statement of Mr. Latta follows:] 

PREPARED STATEMENT OF HON. ROBERT E. LATTA

Thank you, Mr. Chairman, and thank you for holding today’s hearing to discuss 

the transition of the Internet Assigned Numbers Authority stewardship. 

Since the National Telecommunications and Information Administration (NTIA) 

announced it would transition the U.S. Government’s role in the Internet’s numbering function to a global multi-stakeholder community, this subcommittee has 

been monitoring the process and has kept the preservation of the Internet’s openness a high priority. I recognize the work the Internet Corporation for Assigned 

Names and Numbers’ (ICANN) has already accomplished and appreciate their proposals addressing the transition. However, I am pleased that Congress remains involved and engaged in Internet governance discussions to ensure enhanced accountability and transparency of ICANN. 

I look forward to continuing this conversation and hearing the witnesses’ thoughts 

on the IANA stewardship transition plan. I thank the chairman for yielding . 

6 

Mr. WALDEN. Indeed. So ordered for all of our members. The 

Chair recognizes the ranking member of the subcommittee from 

California, Ms. Eshoo. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman, for holding this hearing. 

And welcome to our witnesses. It is wonderful to see you. And we 

look forward to your words of wisdom today. 

On the heel of ICANN’s 55th meeting, that is a lot of meetings. 

I think I go to a lot of meetings, but 55 meetings, right, which was 

held in Marrakesh, a nice place to have a meeting I think, interesting place, earlier this month. I think that there is light at the 

end of the tunnel. 

My optimism comes in the form of the final proposal that, I hope, 

is going to ensure that the IANA transition supports and enhances 

the multistakeholder model of Internet governance, maintains the 

security, the stability, and the resiliency of the Internet Domain 

Name System, and does not replace the role of the NTIA with a 

Government-led or intergovernmental organization solution. 

Now, obviously, we know that reaching this point has not been 

without hiccups, let’s put it that way. All right? But hiccups can 

be painful. Those that are afflicted with it—there was a Pope, I 

think, Pope Pius XII suffered from it. At any rate, thankfully, 

through this committee’s leadership last year—and kudos to the 

chairman, because he has really ridden hard on this and, I think, 

we have all benefited by it—the House passed the DOTCOM Act 

by a strong bipartisan vote, 378 to 25. I don’t know what these 25 

people were thinking. To enhance transparency and accountability 

without unreasonably delaying the IANA transition, the legislation 

provided 30 legislative days for public review of the transition proposal. 

Now, while the legislation has not been enacted into law, the 

NTIA administrator committed to this subcommittee last year that 

the agency will submit to Congress a report certifying that the 

transition proposal meets the criteria outlined in NTIA’s March 

2014 announcement, and give Congress an opportunity to review 

the proposal before settling on any final plan—which we appreciate 

and, I think, is appropriate. So the ball is now in NTIA’s court. 

While there is still more work to be done in the 6 months leading 

up to the IANA contract’s expiration, I think with responsible oversight, a successful transition is going to preserve the Internet’s 

guiding principles of openness, security, stability, and resiliency. 

And ensure that ICANN cannot, sounds a little funny doesn’t it, 

ICANN cannot be exposed to Government capture. And that has 

been the underlying concern all along. And I think that we are— 

I think we are moving closer to it. 

So I look forward to your testimony. I thank the chairman not 

only for this hearing, but for all that he has contributed to this 

process, and the witnesses as well. 

Thank you. And I yield back. 

Mr. WALDEN. I thank the gentlelady for her comments and her 

involvement in this whole effort. 

7 

I now recognize the gentleman from Missouri, if he wants to 

make opening comments. No, he does not. 

How about the gentleman from California? Mr. McNerney, do 

you have an opening statement you would like to—— 

Mr. MCNERNEY. No, Mr. Chairman. 

Mr. WALDEN. You do not. Seeing no other members of the committee, we can move on to our witness panel today. Thank you 

again not only for being here and sharing your insights and wisdom, but also, for many of you, your incredible involvement in the 

process itself. 

So we will start with Mr. Steve DelBianco, the executive director 

of NetChoice. Mr. DelBianco, thank you for being here. Please go 

ahead with your opening comments. 

STATEMENTS OF STEVE DELBIANCO, EXECUTIVE DIRECTOR, 

NETCHOICE; ALISSA COOPER, PH.D., CHAIR, IANA STEWARDSHIP TRANSITION COORDINATION GROUP; SALLY SHIPMAN 

WENTWORTH, VICE PRESIDENT OF GLOBAL POLICY DEVELOPMENT, INTERNET SOCIETY; AUDREY PLONK, DIRECTOR, 

GLOBAL CYBERSECURITY AND INTERNET GOVERNANCE 

POLICY, INTEL CORPORATION; MATTHEW SHEARS, DIRECTOR OF GLOBAL INTERNET POLICY AND HUMAN RIGHTS 

PROJECT, CENTER FOR DEMOCRACY & TECHNOLOGY; AND 

DAVID A. GROSS, FORMER U.S. COORDINATOR, INTERNATIONAL COMMUNICATIONS AND INFORMATION POLICY, 

WILEY REIN LLP 

STATEMENT OF STEVE DELBIANCO 

Mr. DELBIANCO. Chairman Walden, Ranking Member Eshoo, 

members of the committee, again, I am Steve DelBianco, executive 

director of NetChoice. And I am deeply involved at ICANN as the 

policy chair for the business constituency there. And I also represent commercial stakeholders on the working group that developed this accountability proposal that we are talking about today. 

I was before you 2 years ago when you held the very first hearing after NTIA announced the transition plan. And I would like to 

credit Chairman Walden, in particular, for steering us towards 

stress testing to figure out the way forward. I also spent many 

hours with GAO as they scrutinized our stress test approach pursuant to your letter request. 

And then I was before this panel last May as you were refining 

your DOTCOM Act. And you should know that your approval of 

DOTCOM brought a standing ovation at the ICANN meeting in Argentina last summer. Now, a standing ovation for the U.S. Congress, put that in the record. 

Mr. WALDEN. Is there video of that we could replay somewhere, 

please? 

Mr. DELBIANCO. And the DOTCOM Act gave us the community 

leverage over ICANN to get these bylaws adopted and implemented 

before letting going of IANA. ICANN’s board committed twice to do 

that last week. 

Now, does the end of the IANA contract somehow mean that the 

U.S. is giving away our Internet, as I heard from a presidential 

candidate? Not really. In the 1980s, American engineers came up 

8 

with a recipe for Internet protocol. And they gave that recipe to the 

world. So Internet engineers anywhere around the planet could 

construct a network using that recipe and connect to other networks. The U.S. doesn’t own the Internet any more than Ireland 

owns the recipe for Irish stew. They don’t. And that is a St. Patty’s 

Day reference. 

The U.S. then created ICANN to internationalize and privatize 

management of the DNS. In over 18 years, the U.S. Government 

has helped ICANN to mature, protect it from U.N. encroachment, 

and to mitigate Government power. So Government power was the 

subject of a stress test that I presented to you 2 years ago, the infamous stress test 18, where the Government Advisory Committee 

and ICANN could change to majority voting for its advice, and, 

thereby, place ICANN in the untenable position of arbitrating 

among sovereign governments who don’t agree with each other. 

So in response to that stress test, we placed significant curbs on 

GAC advice. GAC’s advice to the board will require full consensus, 

that is broad support in the absence of a single formal objection. 

And we raised the threshold for the board to reject that advice 

from 10 out of 16 votes from the 9, a small increase. And we created an independent review process to challenge ICANN’s adoption 

of any Government advice. And we don’t allow the governments to 

block the community’s pursuit of that challenge. 

So the governance, or GAC, has unquestionably lost power in 

this transition in our response to stress test 18. And your staff report for today’s hearing describes the opposition of governments, including France, Russia, Spain, Switzerland, Argentina, and Brazil. 

Now, to replace the leverage historically held by NTIA, we designed an empowered community. It is a petition and escalation 

process to challenge any ICANN action to approve a change to fundamental bylaws, and to even spill the board of directors. 

We invited all of the advisory committees and stakeholder organizations and ICANN to be part of this empowered community. We 

included governments there because we created a place for governments at the multistakeholder table when we set up ICANN. And 

had we excluded governments completely, I am afraid you would be 

grilling us today about how it is that Government has no role at 

all in the multistakeholder world. And had we excluded governments, that would be exhibit number 1 for the United Nations and 

ITU to show why they needed to take it over. 

It might be years before we actually turn on the power for the 

empowered community, since its main purpose is to challenge an 

ICANN decision, but that power will be there when we need it. We 

have some serious implementation work left in the next few 

months. 

At first, we have to ensure that the draft bylaws match our proposal. Those of us that are here in the working group will push 

that through for the ICANN board. They will approve it. New bylaws adopted by June, so that NTIA can hand Congress a report 

to give you time before the July recess to look at that. It is an aggressive timeline, but we can do it. 

Let me close by extending on an analogy I suggested to you 2 

years ago. I said to you to think of this transition in terms of a car 

and a driver, that the Domain Name System is the car, designed 

9 

and built in the U.S.A. in the 1990s. And the license plate on that 

car reads IANA. In 1998, we created ICANN as the designated 

driver. We handed ICANN the keys while watching their driving 

and care of the car. But all along, the U.S. retained the title to that 

car as leverage to hold ICANN accountable. It is not, however, sustainable or necessary for the U.S. to hold that power forever in a 

post-Snowden world. 

So this transition signs over the title. But there is a little permanent lien on the back that says IANA customers can take it back 

if ICANN fails to deliver. And our accountability group, Mr. Chairman, is going to slap a little bumper sticker on the back of that 

ICANN car—‘‘How is my driving? Contact 1–800–ICANN Community’’—or go to the empowercommunity.org if they are not driving—— 

Mr. WALDEN. I see it. 

Mr. DELBIANCO. Mr. Chairman, thank you for your committee, 

for your support for the multistakeholder community. Your backing 

was essential. And I look forward to your questions. 

[The prepared statement of Mr. DelBianco follows:] 

10 


Statement of 

Steve DelBianco, 

Executive Director 

N t 

Testimony before the 

U.S. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Communications & Technology 

March 17, 2016 

Privatizing the Internet Assigned Numbers Authority 
11 


I am Executive Director of NetChoice, an association of leading online businesses.1 At 

state, federal, and international fora, NetChoice promotes the integrity and availability of the 

Internet. We've attended 32 ICANN meetings and I'm serving a 6th term as policy chair for 

ICANN's Business Constituency. I've attended 9 Internet Governance Forum (IGF) meetings 

and testified in 7 Congressional hearings on ICANN and Internet governance, including this 

committee's hearings in Apr-2014 and May-2015. 

NetChoice members depend upon a secure Internet address system that's resilient to 

cyber attacks and fraud. We need an Internet that works around the globe- free from 

discriminatory regulation and taxation. And we need policies that are predictable and 

enforceable, allowing innovation while protecting consumers. I will focus on three points today: 

1. Over 18 years and three administrations, the US government has protected the ICANN 

multistakeholder model from government encroachment while exercising light-touch 

oversight. However, it is neither sustainable nor necessary for the US to retain its unique 

role forever. At NTIA's request, the Internet community prepared proposals to let ICANN 

loosen ties to the US government and strengthen its accountability to the global Internet 

user community, such that core Internet functions stay free from governmental control. 

2. NTIA's requirements for this transition guided the design of new mechanisms to: manage 

core Internet functions; hold ICANN accountable; and prevent government capture after the 

transition. Congress' role in this transition began with questions about accountability and 

stress tests, such as the guidance provided by this committee in Apr-2014 and May-2015. 

Your committee also asked the Government Accountability Office (GAO) to analyze risks 

and implications of transition. Your committee then backed the community with its DOTCOM 

Act, insisting that NTIA require ICANN to adopt the multistakeholder proposals as a 

condition of the transition. This backing proved invaluable when !CANN's lawyers and board 

resisted some of the community's proposals. 

3. The community's proposal meets NTIA requirements and reduces governments' ability to 

override community consensus with its advice to ICANN's board. There are implementation 

challenges in the months ahead, but this transition empowers global Internet stakeholders to 

challenge the ICANN board and hold it accountable-- something that has never before 

existed within ICANN. 

1 See http://www.NetChoice.org. This statement reflects the view of NetChoice and does not necessarily represent 

the views of any individual member company. 

2 Press Release, "NTIA Announces Intent to Transition Key Internet Domain Name Functions", March 14, 2014, at 
12 


1. Where are we in this transition process for ICANN and /ANA? 

This committee has led Congressional oversight of NTIA's transition plan, starting at the 

beginning, at the mid-point, and now at the end. This timeline helps visualize the process: 

Inside the 

ICANN 

USG 

House 

GAO 

Although ICANN's board accepted our transition proposals and forwarded them to NTIA last 

week, the timeline leading up to the lANA contract expiration date on 30-Sep is tight: 

• 1-Apr-2016: draft bylaws for review by community working groups. 

• Mid-Apr: ICANN board approves bylaws for public comment period of 30 days. 

• Late May: Evaluate public comments and ICANN board approves new bylaws. 

• 15-Jun: NTIA evaluates adopted bylaws and reports to Congress in time for review 

before recess in mid-July. 

• 15-Aug: NTIA evaluates implementation of community proposals because this is the last 

chance for NTIA to extend the lANA contract, if needed. 

In parallel, the ICANN community will be designing additional accountability measures, including 

improvements in transparency, diversity, and a framework for human rights. The newly adopted 

community powers should ensure these measures can be implemented even if ICANN's board 

and management were to object. 

2 
13 


2. How did we get to this point? 

In the Annex to this statement we have summarized key events in the 18-year evolution 

of ICANN, starting with its genesis in the Clinton administration. We chronicle the escalating 

resentment of other governments over the unique role retained by the US, leading to the 2009 

termination of US oversight agreements and replacement with the Affirmation of Commitments. 

The diagram below shows today's multiple contractual ties and connections between ICANN 

and its global stakeholders. 

Business 

The present arrangement reflects a greatly diminished role for NTIA and growing independence 

for ICANN. Then, the 2013 Snowden revelations- though not unique to the US and entirely 

unrelated to the stewardship of the lANA functions- stoked international concerns that led to 

the administration's decision to relinquish the remaining tether of ICANN accountability to the 

US - the lANA functions contract. 

3 
14 


3. NTIA 's announced transition for lANA functions and ICANN accountability 

In March 2014, the Commerce Department announced that it would transition its 

stewardship of the Internet Assigned Numbers Authority (lANA) functions to the global 

multistakeholder community. Positive global response was immediate, signaling that this move, 

at this time, might relieve some pressure from foreign governments demanding an end to the 

unique US role in lANA oversight and an increasing governmental role in global Internet policy. 

NTIA asked ICANN to develop a transition plan to shift stewardship of lANA functions to 

"the global multistakeholder community," saying the transition proposal must have broad 

community support and satisfy four principles in replacing NTIA's role2

: 

Support and enhance the multistakeholder model 

Maintain the security, stability, and resiliency of the Internet DNS 

Meet the needs and expectation of the global customers and partners of lANA services 

Maintain the openness of the Internet 

NTIA also added a statement that it would not give up lANA control if the plan developed by 

ICANN would place other governments in the legacy role of the US. With the experience of the 

last 18 years, it's appropriate for the US to impose these principles and to prevent any 

government-led organization from replacing the former US role after the transition. 

At the same time, NTIA and most stakeholders recognized that NT lA's existing lANA 

contract provides a broader accountability framework for ICANN, and that accountability 

enhancements should be developed and adopted in parallel with the transition. After NTIA's 

2014 announcement, the Internet community and ICANN developed two tracks to respond to 

the challenge (as shown on the timeline on page 2): 

lANA Stewardship track: Placing the global Internet community in the role historically 

held by NTIA in the lANA contract with ICANN. 

ICANN Accountability track: Giving the global Internet community more power to hold 

the ICANN corporation accountable because NTIA will lose the leverage associated with 

the lANA contract once it expires. 

2 Press Release, "NTIA Announces Intent to Transition Key Internet Domain Name Functions", March 14, 2014, at 

I]!!Qilwww.ntia.doc.gov/press-release/2014f!11ia-announces-intent-transition-key-internet-domain-name-functions 

4 
15 


On each track, the community is comprised of representatives of ICANN's recognized Advisory 

Committees and Stakeholder Organizations, including business; governments; and civil society. 

The lANA Stewardship Track: ICANN structured the lANA track to have community 

groups with customers of the numbers, protocol parameters, and naming functions. They 

began meeting in Oct-2014 and published a final proposal in Oct-2015, with these elements: 

• Create a new legal entity to contract with ICANN to operate lANA naming functions 

• Establish a customer committee to monitor the performance of lANA functions 

• Establish a periodic review of the lANA Functions, embedded in ICANN bylaws 

• Empower the community select a new operator for the lANA Functions, if needed 

Notably, the lANA naming proposal relies upon enhanced community powers in the ICANN 

Accountability Track to hold ICANN to its new obligations. 

The ICANN Accountability Track: ICANN stakeholders named representatives to a 

cross-community working group (CCWG) that began meeting in Dec-2014. (I serve as the 

representative of Commercial Stakeholders on the CCWG). After more than 200 meetings and 

calls, and over 12,000 emails over 14 months, the 200 participants in CCWG published a final 

proposal giving the community new powers to ensure ICANN was answerable to more than just 

itself.3 New powers for the community include the ability to: 

• Inspect ICANN's internal documents and records 

• Challenge board actions via Independent Review Panels whose decisions are binding 

• Veto bylaw changes proposed by the ICANN board 

• Approve any changes to ICANN Fundamental Bylaws (deemed core to ICANN's 

governance structure) and Articles of Incorporation 

• Veto strategic plans and budgets proposed by the ICANN board 

• Control the periodic reviews required by the Affirmation of Commitments 

• Remove individual ICANN board directors 

• Recall the entire ICANN board, as a last-resort measure 

ICANN's lawyers and the community's independent legal counsel are jointly drafting the 

necessary changes to ICANN bylaws, with a target publication date of early April. 

3 Final Accountability Proposal, at https:l/www.icann.org/en/system/files!files/ccwg-accountability-supp-Qroposalwork-stream-1-recs-23feb 16-en .pdf 

5 
16 


4. Accountability enhancements suggested by stress testing 

In my testimony before this committee for its Apr-2014 hearing, I described several 

stress tests that should be applied to a post-transition ICANN4 Chairman Walden, NTIA, and 

many in the Internet community embraced stress testing as a way to allow community planning 

to proceed, while informing and evaluating proposals against potential threats. The committee 

report on your Apr-2014 hearing includes:5 

The discussion with stakeholder witnesses generated significant discussion around ICANN 

accountability and the topic of ·stress tests'--a series of tests designed to simulate a set of 

'plausible, but not necessarily probable, hypothetical scenarios' in an effort to determine the 

resiliency of ICANN under any proposed solution. 

Beginning with 8 stress tests that NetChoice presented to your committee, the accountability 

and lANA stewardship groups added 29 more. lied the working group that applied these stress 

tests to the accountability proposal, and we concluded that new accountability measures would 

empower the community to challenge ICANN's actions. For some stresses caused by external 

events, new accountability measures could help the community challenge the board's 

preparation and reaction, but could not completely mitigate the impact on ICANN. 

Thanks to this committee's request last June, GAO examined stress tests in their 

analysis.6 GAO completed its analysis last September, reporting: 

stakeholders identified a risk that ICANN could be captured by a particular interest. To address 

this risk, stakeholders proposed changes that would empower the multistakeholder community to 

veto board decisions related to ICANN's plans and budget and to remove board members, 

among other things. 7 

GAO recommended that NTIA apply a framework to evaluate whether the proposal meets its 

requirements and to consider the accountability mechanisms in the proposal. 

4 See Stress Tests, pages 7-10 at NetChoice Testimonybef()r".Jhe House Energy & Cocnmerce Committe."-, 

Su!Jcommittee on Communications and Technology- Ensuring the Security, Stability, Resilience, and Freedom of 

the Global Internet, 2-Apr-2014 

5 House Energy & Commerce Committee Issues Report on DOTCOM Act, 23-Jun-2015, at 

https:l/www.gpo.gov/fdsys/pkg/CRPT -114hrpt175/pdf/CRPT-114hrpt175.pdf 

6 Letter to GAO from House Commerce Committee Chairmen Upton and Walden, and members Blackburn, Shimkus, 

Kelly, and Rokita. 5-Jun-2014, at 

http:l/energycommerce.house.gov/sites/republicans.energycommerce.house.govlfiles/letters/20140605GAO.pdf 

7 United States Government Accountability Office Report to Congressional Requestors, Aug-2015, at 

http:l/gao.gov/assets/680/672055.pdl 

6 
17 


Overall, the stress test team determined that proposed new accountability measures 

were a significant improvement compared to existing measures, and would give the community 

adequate powers to challenge ICANN's actions. Two particular stress tests are worth exploring 

in this hearing because they identified critical risks of having ICANN quit the Affirmation of 

Commitments and avoiding expansion of governmental influence over ICANN. 

4.1 Proposal to bring Affirmation commitments and reviews into ICANN bylaws 

In our April 2014 testimony, the very first stress test that we proposed was where ICANN 

decides to quit the Affirmation of Commitments, which it may do with just 120 days notice.8 

Moreover, this committee asked about making Affirmation obligations enforceable, as part of 

question #3 sent to GAO last June. The accountability group was also significantly concerned 

about this stress test and said in its proposal: 

After the lANA agreement is terminated, the Affirmation of Commitments will become the next 

target for elimination since it would be the last remaining aspect of a unique United States 

oversight role for ICANN.9 

Once the lANA contract is gone, the Affirmation stands out and would be targeted for 

elimination by governments who resent the US having a unique, bilateral relationship with 

ICANN. Against this contingency, the accountability group examined Affirmation items to 

determine if they were already part of ICANN bylaws. This resulted in a proposal to add key 

Affirmation commitments to ICANN bylaws: 

Seeking and supporting broad, informed participation reflecting the functional, geographic, and 

cultural diversity of the Internet at all levels of policy development and decision-making to ensure 

that the bottom-up, multistakeholder policy development process is used to ascertain the global 

public interest and that those processes are accountable and transparent;. 

ICANN shall perform and publish analyses of the positive and negative effects of its decisions on 

the public, including any financial or non-financial impact on the public, and the positive or 

negative impact (if any) on the systemic security, stability, and resiliency of the DNS. 

ICANN shall adhere to transparent and accountable budgeting processes, providing advance 

notice to facilitate stakeholder engagement in policy decision-making, fact- based policy 

development, cross community deliberations, and responsive consultation procedures that 

provide detailed explanations of the basis for decisions, including how comments have influenced 

the development of policy consideration, and to publish each year an annual report that sets out 

ICANN's progress against ICANN's Bylaws, responsibilities, and Strategic and Operating Plans. 

8 See Stress Test 1, on page 8 at NetChoice Testimony before the House Energy & Commerce Committee, 

Subcommittee on Communications and Technology- Ensuring the Security. Stability, Resilience, and Freedom of 

the Global Internet, 2-Apr-2014 

9 p.51 at draft report of Cross Community Working Group on Enhancing ICANN Accountability, 4-May-2015 

7 
18 


Affirmation section 8b was discussed in a Senate Commerce Committee hearing in Feb2015. 8b commits ICANN to "remain a not for profit corporation, headquartered in the United 

States of America with offices around the world to meet the needs of a global community." The 

community determined this commitment was reflected in ICANN bylaws Article XVIII section 1: 

"OFFICES. The principal office for the transaction of the business of ICANN shall be in the 

County of Los Angeles, State of California, United States of America. ICANN may also have an 

additional office or offices within or outside the United States of America as it may from time to 

time establish." 

While ICANN's board could propose a change to this bylaws provision, the empowered 

community could block the proposed change, using one of its new community powers. In 

addition, ICANN's Articles of Incorporation already state that ICANN "is organized under 

California Nonprofit Public Benefit Corporation Law"10 We propose amending ICANN's 

Articles of Incorporation such that any change would require approval by the empowered 

community. As part of this stress test analysis, we proposed bringing the 4 periodic community 

reviews from the Affirmation into ICANN's bylaws: 

ICANN's accountability & transparency 

Preserving security, stability and resiliency 

Promoting competition, consumer trust, and consumer choice 

The extent to which WHO IS services meet legitimate needs of law enforcement 

These reviews will become part of ICANN bylaws, modified to give the community access to 

ICANN internal documents and control over review team composition. In addition, the lANA 

stewardship group proposed an lANA Functions Review be added to the bylaws. When 

combined with new powers to challenge ICANN board decisions, these bylaws changes would 

enable termination of the Affirmation of Commitments. We concluded that the Affirmation should 

be terminated to avoid having a side agreement slightly different from the new bylaws, and to 

avoid having a bilateral agreement with the US that could become the next target for 

elimination.'' 

10 Section 3 of ICANN Articles of Incorporation, at https://www.icann.org/resources/pages/governance/articles-en 

11 p. 6, Annex 9 - Recommendation #9: Incorporating the Affirmation of Commitments in ICANN's Bylaws, at 

https://www.icann.org/en/system/files/files/ccwg-accountability-supp:Qioposal-work-stream-1-recs-23feb16-en.p.Qf 

8 
19 


4.2 Proposal to limit ICANN obligations to follow advice from governments 

In our Apr-2014 and May-2015 testimony, I described a stress test where governments 

could raise their influence via Government Advisory Committee (GAC) advice to ICANN. 12 This 

concern was echoed in this committee's question #2 to GAO, and generated keen interest since 

it addresses ICANN's response to government advice. In our final proposal we said: 

Stress Test #18 is related to a scenario where ICANN's GAC would amend its operating 

procedures to change from consensus decisions to majority voting for advice to the ICANN 

Board. Since the ICANN Board must seek a mutually acceptable solution if it rejects GAC advice, 

concerns were raised that the Board could be forced to arbitrate among sovereign governments if 

they were divided in their support for the GAC advice. In addition, if the GAC lowered its decision 

threshold while also participating in the Empowered Community, some stakeholders believe this 

could inappropriately increase government influence over ICANNB 

Here's how we applied Stress Test 18 to existing and proposed accountability measures: 

31 Current ICANN Bylaws (Article XI) require 

ICANN to try to find a mutually acceptable 

solution for Governmental Advisory 

Committee advice. 

32 Today, Governmental Advisory Committee 

adopts formal advice according to its 

Operating Principle 47: "consensus is understood to mean the pracffce of 

adopting decisions by general agraement 

In the absence of any folm8l objection. • 

aa The Governmental Advisory Committee 

may at any time change its procedures 

instead of its present consensus rule. 

34 The requirement to try to find a mutuany 

acceptable solution in the current Bylaws 

would then apply, not just !or 

Governmental Advisory Committee 

consensus advice. 

as The proposed measure would amend 

ICANN Bylaws (Article XI, Section 2, ilem 

1 j) to require trying to lind a mutually 

acceptable solution only where 

Governmental Advisory Committee advice 

was supported by full Governmental 

Advisory Committee consensus, 

understood to mean the practice of 

adopting decisions by general agreement 

in the absence of any formal objection. 

as The proposed accounlabillly measure 

recognizes that the decision not to follow 

GAC consensus edvioe would require a 

60% majority of the ICANN Board. 

37 The Governmental Advisory Committee 

can still give ICANN advice at any time, 

with or willlout full consensus. 

,. Racognizing the general principle ti1at an 

AC should have the autonomy to refine its 

Operating Procedures, the Governmental 

Advisory Committee could specify flow 

.. -'~·. ·~"-~!Ire raised and considered. 

12 See Stress Tests 6 & 7, on page 9 at NetChoice Testimony before the House Energy & Commerce CommitteeEnsuring the Security, Stabllf.tv. Resilience, and Freedom of the Global internet, 2-Apr-2014 

13 pp. 2-3, Annex 11 • Recommendation #11: Board Obligations with Regard to Governmental Advisory Committee 

Advice (Stress Test #18), at https:/lwww.icann.org/enlsystem/fileslfiles/ccwg-accountability-supp-proposal-work· 

stream-1-recs-23feb 16-en.pdf 

9 
20 


Our proposal enshrines the GAG's present method of decision-making into IGANN 

bylaws as the Q!lly way to trigger the board's obligation to "try and find a mutually acceptable 

solution." Many GAG members fiercely resisted this change, saying it interfered with 

government decision-making and reduced the role of governments. In the end, the proposal we 

developed increases the threshold for IGANN's board to reject GAG advice, from today's simple 

majority (9 votes) to 60% (10 votes). However, the GAG would no\ be allowed to block a 

community challenge of IGANN Board's implementation of GAG advice. 

Another imposition on GAG advice is a requirement that all advisory committees provide 

a rationale for their advice to IGANN's board. And to address concerns that GAG advice is 

sometimes inconsistent with IGANN Bylaws, we added this clarification for legal counsel to 

consider when drafting Bylaws language: 

ICANN cannot take action - based on advice or otherwise- that is inconsistent with its Bylaws. 

While the GAC is not restricted as to the advice it can offer to ICANN, it is clear that ICANN may 

not take action that is inconsistent with its Bylaws. Any aggrieved party or the Empowered 

Community will have standing to bring claims through the IRP that the Board acted (or failed to 

act) in a manner inconsistent with the ICANN Articles of Incorporation or Bylaws, even if the 

Board acted on GAC advice. 

Some government representatives opposed these changes to IGANN bylaws. That is not 

unexpected because some government representatives have previously voiced dissatisfaction 

with the consensus rule for GAG decisions. It is entirely plausible that the GAG could 

unilaterally change its method of approving advice at some point, such that a majority could 

prevail over a significant minority of governments. On the other hand, several governments 

supported the change, including a forceful statement from NTIA 14: 

As a threshold matter, the USG considers the stress test both appropriate and necessary to meet 

the requirement that the lANA transition should not yield a government-led or an 

intergovernmental replacement for NTIA's current stewardship role. 

Finally, we interpret the proposed stress test as capturing this important distinction in GAC 

advice, with an appropriate remedy in the form of a Bylaws amendment to reinforce the ICANN 

community's expectation that anything less than consensus is not advice that triggers the Bylaw 

provisions. 

I firmly believe the tradeoff of one extra vote to reject GAG advice, while reducing GAG 

influence through several measures, is clearly a net gain for IGANN's private sector 

stakeholders and meets NT lA's conditions for the transition. 

14 Email from Suzanne Radell, Senior Policy Advisor, NTIA, 19-Mar-2015, at 

http://mm.ieann .org/pipermaiUaccountability-cross-community/20 15-March/00 1711.html 

10 
21 


4.3 Stress Tests regarding enforcement of ICANN contracts 

Stress Tests 29 and 30 examined challenges to ICANN's ability to enforce its contracts 

with registries and registrars. This committee's Jun-2015 report also stated an expectation 

regarding ICANN's enforcement of contract provisions: 

The Committee therefore asks the NTIA to work with ICANN and stakeholders so that the 

transition proposal ensures the contractual obligations created through the multistakeholder 

process are fulfilled and effectively enforced.15 

The community's accountability proposal addresses your request with these recommendations: 

ICANN shall have the ability to negotiate, enter into and enforce agreements, including Public 

Interest Commitments ("PICs"), with contracted parties in service of its Mission. 

For the avoidance of uncertainty only, the language of existing registry agreements and registrar 

accreditation agreements (including PICs and as-yet unsigned new gTLD Registry Agreements 

for applicants in the new gTLD round that commenced in 2013) should be grandfathered to the 

extent that such terms and conditions might otherwise be considered to violate ICANN's Bylaws 

or exceed the scope of its Mission. This means that the parties who entered/enter into existing 

contracts intended (and intend) to be bound by those agreements. 16 

4.4. Enforcing the Community's new Accountability Powers 

Your Jun-2015 committee report also stated an expectation that "NTIA will not certify 

their adoption until such time as the Internet community can avail themselves of the terms, 

either through ICANN's processes or through the courts." 

The final proposal includes direct court enforcement for community's statutory power to 

remove an individual director or to recall the entire ICANN board. 17 If the community wins in an 

independent review process (IRP) and ICANN board does not comply with the IRP decision, the 

community can petition a court to enforce the result of the IRP. For all other community powers, 

the recourse is to recall the entire ICANN board, which is also enforceable in court. 

This historic transition creates the opportunity for the community to obtain accountability 

enhancements that the ICANN board would not likely approve if those enhancements were 

15 House Energy & Commerce Committee Issues Report on DOTCOM Act, 23-Jun-2015, at 

https://www.gpo.gov/fdsys/pkg/CRPT-114hrpt175/pdf/CRPT -114hrpt175.pdf 

16 pp. 3-4, Annex 05 -Recommendation #5: Changing Aspects of ICANN's Mission. Commitments and Core Values, 

at https:llwww .icann.orglenlsystem/files/fileslccwg-accountability-supp-proposal-work-stream-1-recs-23feb 16-en. pdf 

17 p. 9, Annex 02 -Recommendation #2: Empowering the Community through Consensus, at 

https:llwww.icann.orglenlsystemlfileslfileslccwg-accountabili!Y::supp-proposal-work-str".arrt-1-recs-23feb16-en.pdf 

11 
22 


proposed after the leverage of the lANA contract is gone. By the same token, the GAC would 

resist these bylaws changes if they were proposed at some point after the lANA transition. 

This transition is the best opportunity to pursue difficult and sometimes controversial 

changes to ensure that ICANN is accountable to the entire community it was created to serve. 

This transition is the best opportunity for the US government to use its leverage to get ICANN to 

implement the community's proposed accountability enhancements. It's imperative to empower 

the Internet community to challenge ICANN decisions on situations that will arise in the decades 

ahead. That leads us to the final segment of our testimony, on the continuing role for Congress. 

5. Congress's role in ensuring an accountable ICANN 

Members of this committee raised questions and concerns about the transition, 

accountability mechanisms, and potential stress tests. Your work on the DOTCOM Act 

stimulated the questions sent to GAO last June by Chairmen Upton and Walden, and members 

Blackburn, Shimkus, Kelly, and Rokita. Those questions included critical matters also in 

DOTCOM, such as national security concerns and implications for other US agencies. 

The global Internet community has devoted thousands of hours developing this proposal 

for the transition, and is facing additional work to implement the bylaws and plan for 'work 

stream 2' accountability enhancements. We are therefore grateful that this committee passed 

legislation insisting that NTIA require ICANN to adopt the multistakeholder community proposals 

as a condition of the /ANA transition. Your strong support helped us last week in Marrakech, 

where ICANN's board committed to adopt bylaws changes required by the community proposal 

-regardless of when this proposal works its way through Washington. 

To prepare ICANN for a future independent of US government contracts, the Internet 

community needs to hold ICANN accountable, with powers like shareholders have over 

corporations; voters over their elected officials; and members over their trade associations. 

This transition can realize the White Paper vision for an ICANN that is led by, and accountable 

to its multistakeholder communities, including the private sector; civil society; and technology 

experts- along with governments. Together, we can bring con.nectivity, content, and commerce 

to the next billion global Internet users and to future generations of Americans. 

12 
23 


Annex- United States government stewardship of ICANN and /ANA 

American engineers came up with a "recipe" for core Internet technologies and promptly 

gave that recipe to the world. Internet hosts were appearing internationally by the 1980s. The 

1990's saw the explosion of commercial uses of the Internet, based on a naming and numbering 

system also created in the United States. In 1998, the Clinton administration sought to privatize 

and internationalize the Domain Name System (DNS) with this directive in the White Paper: 

The President directed the Secretary of Commerce to privatize the Domain Name System in a 

way that increases competition and facilitates international participation in its management. 

The US Government is committed to a transition that will allow the private sector to take 

leadership for DNS management.18 

In the 18 years since, it's been a long road from American invention to internationalized privatesector leadership by an entity the US established for the task: the Internet Corporation for 

Assigned Names and Numbers (ICANN). Three administrations and several Congresses have 

worked to help ICANN mature and protect the vision of private-sector leadership from growing 

pressure for control by governments, who saw the growth of the Internet and assumed that its 

governance required an inter-governmental solution. 

The transition to an independent ICANN was expected to take a few years, but the 

National Telecommunications and Information Administration (NTIA) made several extensions 

of its oversight arrangements, the latest of which expired in September 2009. At the time, 

NetChoice was among those calling for another extension so that ICANN could develop 

permanent accountability mechanisms. 

Instead, NTIA and ICANN unveiled a new agreement, the Affirmation of Commitments. 19 

The Affirmation established periodic reviews giving all stakeholders - including governments- a 

defined oversight role in assessing ICANN's performance. The Affirmation gave the global 

Internet community what was promised: independence for ICANN in a framework where 

governments were alongside private sector stakeholders. 

18 The "White Paper" on Management of Internet Names and Addresses, US Department of Commerce, Jun-1998, 

see lillQ;Ifwww.ntia.doc.gov/ntiahome/domainname/6 5 98dns.htm 

19 Affirmation of Commitments, 2009, http:l/icann.orglen/documentslaffirmatio.Doof:.QQ.IT\mitments-30sep09-en.htm 

13 
24 


But concerns about the US role in naming and numbering remained after the execution 

of the Affirmation, because NTIA retained its contracting role for the Internet Assigned Numbers 

Authority (lANA). The lANA contract is deemed essential to ICANN and therefore provided 

NTIA leverage to hold ICANN to its Affirmation obligations. 

However, ICANN can quit the Affirmation with just 120 days notice. And within a year of 

signing, ICANN's then-chairman told a group of European parliamentarians that he saw the 

Affirmation as a temporary arrangement ICANN would like to eventually terminate. 20 

All of this to say that ICANN needs a persistent and powerful reminder that it serves at 

the pleasure of global stakeholders; that ICANN has no permanent lock on managing the 

Internet's name and address system. We said at the time that ICANN's role in lANA functions 

should disappear if it were to walk away from the Affirmation of Commitments. 

Since the UN created the Internet Governance Forum (IGF) in 2005, IGF meetings have 

become increasingly productive, yet some governments still want the UN to oversee DNS tasks 

handled by ICANN and lANA. In its July-2010 statement to the UN, China's government asked 

the UN and IGF to "solve the issue of unilateral control of the Critical Internet Resources." By 

'unilateral control', China means US custody of the lANA contract. And 'Critical Internet 

Resources' include IP addresses, root servers, and the policymaking for domain names. 

China was not alone in its desire for the migration of ICANN and lANA functions to the 

UN's International Telecommunication Union (ITU). ITU leadership did not like a model where 

governments share power with industry and civil society, and warned ICANN that sooner or later 

governments would take greater control of the organization. 

In 2011, a group of governments proposed their own replacement for US oversight and 

ICANN's model of private sector leadership. India, Brazil, and South Africa declared it was time 

for "establishing a new global body" located "within the UN system" to "oversee the bodies 

responsible for technical and operational functioning of the Internet." 21 In contrast, both 

houses of Congress unanimously affirmed a resolution in 2012 stating, "the consistent and 

20 Peter Dengate Thrush, in response to a question from Steve DelBianco, at event hosted by European Internet 

Foundation in Brussels, June 22, 201 0. 

21 Recommendations of IBSA Multistakeholder meeting on Global Internet Governance, September 2011, at 

h!\Q)/www.culturalivre.org.brfartiqos/IBSA recommendations Internet Governance.pdf 

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25 


unequivocal policy of the United States to promote a global Internet free from government 

control and preserve and advance the successful multistakeholder model that governs the 

Internet today ."22 

The diagram below shows the multiple contractual ties and connections between ICANN 

and its global stakeholders. 

Clearly, the last 18 years of "transition" have seen significant improvements in 

globalizing ICANN and lANA, although there have certainly been some challenges. Along the 

way, some governments and intergovernmental organizations have criticized the US role and 

22 H.Con.Res.127 and S.Con.Res.SO- Expressing the sense of Congress regarding actions to preserve and advance 

the multistakeholder governance model under which the Internet has thrived. Aug 20, 2012 

15 
26 


openly coveted taking over that role. But throughout, the US Congress and multiple 

administrations have stayed with the vision of multistakeholder, private-sector leadership for 

Internet addressing and policymaking. And our government has used its contractual tools to 

improve ICANN's performance and to hold the organization to the accountability measures in 

the Affirmation of Commitments. 

Still, the US continued to work towards full privatization of ICANN and lANA, at a 

deliberate pace and with measurable progress. Then came 2013 and Edward Snowden's 

revelations of US government surveillance. While not unique to the US and entirely unrelated to 

ICANN and the lANA functions, Snowden stoked international concerns that led to the 

administration's decision to relinquish the remaining tether of ICANN accountability to the USthe lANA functions contract. 

Ensuring that ICANN accepts and implements the community proposals 

In September 2014 all ICANN advisory committees and stakeholder groups wrote a joint 

letter raising questions about ICANN's proposed accountability process.23 ICANN responded 

by asking whether and why the community seemed to lack trust in ICANN's board and 

management. The Business Constituency's reply is remarkable for its clarity on why the 

community needs new measures to hold ICANN accountable:24 

First, this discussion is not about whether the community 'trusts' the current ICANN 

board. It's about trusting future boards- after we no longer have the leverage/influence 

of the US Government to rely upon. This lANA transition is the community's chance to 

establish mechanisms to rein-in a future board that would put ICANN's corporate 

interests ahead of the community. We are not suggesting that a future board would do 

so. Rather, we are acknowledging that the board is obliged to protect the corporation's 

interests first, as required by ICANN bylaws: 

Section 7: Directors shall serve as individuals who have the duty to act in what 

they reasonably believe are the best interests of ICANN and not as 

representatives of the entity that selected them. 

23 Joint questions, https:/lwww.icann.org/en/systemlfiles/correspondence/cooper-et-al-to-chehade-crocker-03sep14-

en.pdf 

24 p. 3, Business Constituency comment on Enhancing ICANN Accountability Process, 27-Sep-2014, at 

h!tp:l/www.bizconst.org/wp-content/uploads/2014109/BC-comment-on-Enhancing-ICANN-Accountability-Process.pdf 

16 
27 


Should there be any confusion about whether the bylaws refer to 'ICANN' as the 

corporation or the community, see ICANN's Management Operating Principles (2008): 

"The third and perhaps most critical point of tension is between the accountability 

to the participating community to perform functions in keeping with the 

expectations of the community and the corporate and legal responsibilities of the 

Board to meet its fiduciary obligations. The ultimate legal accountability of the 

organization lies with the Board, not with the individuals and entities that make up 

the ICANN community."25 

The Business Constituency had it right: ICANN's present bylaws do not hold the board 

accountable to the community. Before the US government lets go of the oversight leverage 

inherent in the lANA contract, it must ensure that ICANN accepts and implements the proposals 

needed to keep the ICANN corporation accountable to the global multistakeholder community 

that ICANN was created to serve. 

25 ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at 

https;//www.icann.()rglen/systemlfileslfileslacct.:!L'!nS·frameworks-principles-10jan08-en.pdf 

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28 

Mr. WALDEN. Mr. DelBianco, thank you. I think you win the 

prize for most interesting props for a hearing we have had in 5 

years. 

I do want to take one exception, however. Your comment the 

Irish don’t control the recipe to the Internet, that is true. They do 

still maintain the control over the recipe for Guinness though. And 

that is something you may want to—— 

We will now go to Dr. Alissa Cooper, who chairs the IANA Stewardship Transition Coordination Group. Dr. Cooper, we are delighted to have you before our members. Thank you for your participation. Please go ahead. 

STATEMENT OF ALISSA COOPER 

Dr. COOPER. Thank you, Chairman Walden and members of the 

subcommittee, for the opportunity to testify today. My name is 

Alissa Cooper. I am an engineer by training. And I am the chair 

of the IANA Stewardship Transition Coordination Group, otherwise 

known as the ICG. 

The ICG was formed in July 2014 to coordinate the development 

of a plan to transition the stewardship of the Internet Assigned 

Number Authority functions to the global Internet community. The 

group is comprised of 32 people representing all of those who are 

affected by the transition. Businesses, governments, civil society, 

Internet users, and the technical community. 

Last week, NTIA received a package of proposals, one concerning 

the operational aspects of the IANA stewardship transition and the 

other concerning enhancements to the accountability of the Internet Corporation for Assigned Names and Numbers, ICANN. The 

two plans are interdependent and interrelated. And NTIA is considering them jointly, as is the U.S. Government more broadly. 

My testimony is focused on the operationally oriented IANA 

stewardship transition proposal, because that is the component 

that the ICG, the group that I chair, shepherded to its completion. 

There are three important aspects to recognize about the stewardship transition proposal. First, support for the plan is broad, 

deep, diverse, and global. Hundreds of people from across sectors 

and geographies put in thousands of hours of work, joined conference calls in the middle of the night, spent weekends, evenings, 

and holidays to complete this proposal. The effort put into it is 

truly remarkable and unprecedented. The result is global consensus in support of a plan that is good for the Internet. 

The ICG solicited public comments on the proposal last year, in 

a similar fashion, to the way that a Federal agency might solicit 

public comments. A significant majority of the 157 commentors expressed support for the plan, including U.S. businesses, trade associations, and civil society groups. Furthermore, the ICG, where all 

of those who are most invested in the smooth functioning of the 

Internet, supports the proposal unanimously. 

The second critical point is that the plan provides continuity with 

how the Internet works today, building on the Internet’s success. 

The strength of the plan is that it keeps in place the same operational realities that have allowed the Internet to grow and to be 

successful since the 1990s. It keeps the role of the IANAfunctions 

team intact and carrying out the same duties as it has now. So on 

29 

the day that the NTIA contract expires, Internet users should notice no change. 

Furthermore, the Internet works because of a diverse set of organizations and individuals choose voluntarily, without any mandate, 

to have their networks interoperate with each other. Implementing 

the transition plan will be an important step in aligning the oversight of IANA with this collaborative and decentralized approach to 

Internet operations, rather than relying on authority derived from 

any single Government’s contract. 

The third and final critical point is that the plan meets the criteria established by NTIA at the outset of the transition. I will 

focus on three of these criteria for brevity. Number one, the plan 

supports and enhances the multistakeholder model by leveraging 

and extending existing multistakeholder processes and arrangements. The plan upholds a vision for multistakeholder Internet 

governance that all of the communities represented on the ICG 

share and that, I think, this Congress shares as well. 

Number two, the plan maintains the security, stability, and resiliency of the Domain Name System by focusing on continuity as I 

just described. From an operational perspective, the plan incurs 

minimum change, while enhancing community oversight over 

IANA, providing the perfect recipe for security and stability. 

And, number three, the plan does not replace NTIA’s role with 

a Government or intergovernmental organization. Instead, it relies 

on the global multistakeholder community to provide oversight over 

IANA. This community demonstrates a suite of features that defend it against capture by any single interest, including governmental interests. Those features include open processes where anyone can participate and everyone has a say, the use of transparent 

public proceedings for all decisions, consensus-based decisionmaking that never defaults to voting or campaigning, established 

appeals processes, and the ability to recall or replace underperforming members of the leadership. Taken together, these form the 

essence of the multistakeholder model and the best defense against 

undue influence by any single entity. 

I look forward to your questions today and welcome you to send 

further questions to the ICG at any point during your review of the 

transition plan. 

Thank you for your time and interest and your thoughtful consideration of this matter of critical importance to the future of the 

Internet. 

[The prepared statement of Dr. Cooper follows:] 

30 


Statement of Dr. Alissa Cooper 

Chair, lANA Stewardship Transition Coordination Group (ICG) 

Before the House Committee on Energy and Commerce, 

Subcommittee on Communications and Technology 

"Privatizing the Internet Assigned Number Authority" 

March 17, 2016 

Summary 

As chair of the lANA Stewardship Transition Coordination Group (ICG), I thank 

you for the opportunity to testify. When the ICG was first formed we established a single 

goal: to deliver an lANA stewardship transition proposal to NTIA. After two years of 

intensive work involving hundreds of individuals and numerous entities from all over the 

world, we have achieved that goal. The lANA Stewardship Transition Proposal was 

developed in the image of the Internet itself- through bottom-up, consensus-based 

multistakeholder processes where anyone can participate and everyone has a say. The 

ultimate result is global consensus in support of a plan that is good for the Internet. 

The transition proposal upholds a vision for the Internet that all of the 

communities represented on the ICG share, and that I believe this Congress shares as 

well. The proposal supports the multistakeholder model of Internet governance; 

maintains the security, stability, and resiliency of the Domain Name System; meets the 

needs of the customers and partners of lANA; maintains the openness of the Internet; 

and does not replace NTIA's role with a government or inter-governmental organization. 

In other words, it meets the criteria for the transition that NTIA established in 2014. 

The key strength of the transition proposal is that it provides continuity with how 

the Internet has been operated for decades. The processes and structures developed 

and used to keep the Internet running smoothly over the past 30 years have proven their 

robustness, even as the Internet has grown and evolved. Approving and implementing 

the transition proposal will ensure that they will continue to work well going forward. 
31 


I. Introduction 

Chairman Walden and members of the subcommittee: 

As chair of the lANA Stewardship Transition Coordination Group (ICG), I thank 

you for the opportunity to testify. The ICG was formed in July 2014 to coordinate the 

development of a proposal to transition the stewardship of the lANA functions to the 

global Internet community. The group is comprised of 30 members and two liaisons 

representing all stakeholders affected by the transition - businesses, governments, civil 

society, users, and the technical community. I am an engineer by training, and I was 

named to the ICG as a technical community representative on behalf of the Internet 

Engineering Task Force (IETF). I currently serve on the IETF's 15-member Internet 

Engineering Steering Group, responsible for shepherding the standardization of Internet 

engineering efforts at the IETF. In that capacity, I interact with lANA staff on nearly a 

daily basis. 

When the ICG was first formed we established a single goal: to deliver a 

transition proposal to NTIA. After two years of intensive work involving hundreds of 

individuals and numerous entities from all over the world, we have achieved that goal. 

The lANA Stewardship Transition Proposal is the result of thousands of hours of work, 

hundreds of calls and meetings, and tens of thousands of email exchanges. It was 

developed in the image of the Internet itself- through bottom-up, consensus-based 

multistakeholder processes where anyone can participate and everyone has a say. The 

ultimate result is global consensus in support of a plan that is good for the future of the 

Internet. 

The transition proposal upholds a vision for the Internet that all of the 

communities represented on the ICG share, and that I believe this Congress shares as 

well. The proposal supports the multistakeholder model of Internet governance; 

maintains the security, stability, and resiliency of the Domain Name System; meets the 

needs of the customers and partners of lANA; maintains the openness of the Internet; 

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32 


and does not replace NTIA's role with a government or inter-governmental organization. 

In other words, it meets the criteria for the transition that NTIA established at the outset 

of the process. 

The key strength of the transition proposal is that it provides continuity with how 

the Internet has been operated for decades. It keeps the role of the lANA team intact 

and carrying out the same duties as it has today. The processes and structures 

developed and used to keep the Internet running smoothly over the past 30 years have 

proven their robustness, even as the Internet has grown and evolved. Approving and 

implementing the transition proposal will ensure that they will continue to work well going 

forward. 

The Internet is a global resource that functions because a diverse set of 

organizations and individuals choose to cooperate to allow their networks to interconnect 

and interoperate with one another. Completing the lANA stewardship transition is an 

important step in aligning the oversight over lANA's operations with this collaborative 

approach to operating the Internet today, rather than relying on authority derived from a 

single government's contract. 

This testimony provides a brief background about what lANA is and does 

(Section II), provides a summary of the lANA Stewardship Transition Proposal (Section 

Ill), explains how the proposal meets the criteria set out by NTIA (Section IV), and 

provides some concluding remarks (Section V). 

II. Overview of the Internet Assigned Numbers Authority (lANA) 

The Internet is a global network of networks. It is fundamentally a distributed 

system, where the operator of each local network chooses, by and large, how to run its 

network locally. This means that whether networks connect and allow for 

communications across them is fundamentally a voluntary choice. By choosing to 

interoperate, disparate networks and the users who connect to them experience the 

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33 


benefits of the network effects derived from global interoperation and interconnection. 

Almost all of the technical operation of the Internet is undertaken without any centralized 

coordination or bookkeeping, performed by tens of thousands of independent operators. 

Yet some of those involved in early Internet engineering efforts recognized that a 

minimal amount of bookkeeping would help the Internet run more smoothly, and that the 

easiest way to do this would be in a centralized fashion. The Internet Assigned Numbers 

Authority (lANA) provides that minimal bookkeeping. lANA is a name traditionally used 

to refer to the team of people who perform a small set of clerical tasks for the Internet. 

The set of tasks is often referred to as the "lANA functions." The lANA functions are 

currently performed by a small team of people employed by the Internet Corporation for 

Assigned Names and Numbers (ICANN). They fall into three largely distinct categories. 

The first category is numbers. Data packets make use of Internet Protocol (IP) 

addresses in order to arrive at their appropriate destinations. To make this routing 

system work, networks need to be able to identify each other and they need to know 

which blocks of addresses are associated with each other network. On the Internet, 

numbers are used as unique identifiers for networks (for example, the network 

associated with the government of the District of Columbia is 14072). lANA maintains, at 

a global level, the list of which blocks of these numbers have been assigned as well as 

lists indicating to whom IP address blocks have been assigned. These kinds of lists are 

often referred to as "registries." Maintaining these registries is what comprises the 

numbers-related lANA functions. 

The second category is known as "protocol parameters." The Internet works 

because the computers and devices connected to it use standardized patterns of 

communication known as "protocols." Many protocols rely on specific configuration 

settings known as protocol parameters that both parties to a communication need to use 

in order to communicate. It is convenient to have a single place to look up these 

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34 


configuration settings. Therefore another set of functions that lANA performs is 

maintaining and publishing registries containing the protocol parameters. 

The third category is names. While computers connected to the Internet can find 

each other using IP addresses, those addresses are not easy for human users to 

remember and use. The Domain Name System (DNS) provides a way to map humanreadable names (like "energycommerce.house.gov") to IP addresses (like 

"23.59.123.42"), making the Internet easier to use. This map makes use of a tree 

structure, which like a real tree starts from a common root out of which are a variety of 

branches. The "root zone" is the place to start looking in order to find the IP address that 

corresponds to a particular domain name. It contains the names at the top level of the 

tree, like ".com," ".gov," and ".us". lANA maintains the root zone file- the registry of toplevel domain names that are in the root zone. 

Thus the lANA functions consist of maintaining and publishing registries 

containing numbers, protocol parameters, and names. Critically, lANA does not make 

decisions about which values belong in which registries. The policies used to decide 

which values get inserted, changed, removed, and published in each registry are 

developed outside of lANA, by specific interested communities. lANA simply carries out 

instructions based on those policies. 

Over the course of the Internet's development, each of the three categories of 

lANA functions has developed a specific community of interest that has a direct 

operational or service relationship with lANA. These are sometimes referred to as the 

"customers" of lANA. For numbers, that community is organized around the five 

Regional Internet Registries (RIRs), which are not-for-profit organizations that manage 

and distribute numbers within each region of the world. For protocol parameters, the 

community of interest is organized around the Internet Engineering Task Force (IETF), 

the world's premier organization for the development of the technical standards that 

comprise the Internet. For names, the community of interest is organized around 

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ICANN's supporting organizations and advisory committees, including the Generic 

Names Supporting Organization (GNSO} and the Country Code Names Supporting 

Organization (ccNSO) that develop lANA registry policy for top-level domains. These are 

the entities that develop the policies that dictate which values belong in which registries. 

Within the context of the lANA stewardship transition, these three communities are 

known as the "operational communities." Notably, for the names functions ICANN is both 

the place where registry policy is developed and the administrator of the registries (via 

the lANA team). 

The protocol parameters-related functions constitute the bulk of the registry 

requests that lANA receives. The IETF makes thousands of requests per year to create 

or update protocol parameters registries, and IETF participants have frequent interaction 

with lANA staff. Names-related requests may be numerous but not to the same extent as 

protocol parameters. There tend to be only a handful of numbers-related requests per 

year, as the RIRs themselves are already managing large blocks of numbers. 

NTIA's role is limited to a procedural check during the process of making 

changes to the root zone. However, NTIA has no operational role and does not initiate 

changes to the root zone or the protocol parameters or numbers registries. Thus NT lA's 

role is largely symbolic. NTIA provides oversight by contracting with ICANN to perform 

the lANA functions. The ultimate consequence of failing to meet the performance 

standards or reporting requirements is understood to be a decision by the contracting 

party (NTIA) to terminate or not renew the contract with the current contractor (ICANN}. 

Structurally and operationally, the performance of the lANA functions has 

continued to evolve as the Internet has evolved. The team has grown in size since its 

inception and performance enhancements have been introduced to respond more 

quickly and accurately to community requests. lANA has also undertaken significant 

automation of the process used to update the root zone, streamling the change process. 

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The lANA stewardship transition represents a further step in the continuing evolution of 

lANA. 

Ill. lANA Stewardship Transition Proposal 

On March 10, 2016, the ICANN Board transmitted to NTIA a package comprised 

of two proposals: the Proposal to Transition the Stewardship of the Internet Assigned 

Numbers Authority (/ANA) Functions from the U.S. Commerce Department's National 

Telecommunications and Information Administration (NT/A) to the Global 

Multistakeholder Community (the "lANA Stewardship Transition Proposal"} and the 

CCWG-Accountability Supplemental Final Proposal on Work Stream 1 

Recommendations (the "CCWG-Accountability Proposal"). The two proposals are 

interdependent and interrelated and are being jointly considered by NTIA. This testimony 

is focused on the lANA Stewardship Transition Proposal, as it is that proposal that the 

ICG shepherded to completion. 

A. Process to develop the proposal 

On March 14, 2014, the National Telecommunications and Information 

Administration (NTIA) of the United States Department of Commerce announced its 

intention to transition the stewardship of the lANA functions to the global Internet 

community. NTIA asked ICANN to convene global stakeholders to develop a proposal to 

transition the current role played by NTIA. As a result of community discussions, the 

lANA Stewardship Transition Coordination Group (ICG) was formed in July 2014 to 

coordinate the transition planning process. The ICG is composed of 30 individuals from 

around the globe appointed by and representing 13 communities, and includes both 

direct customers of lANA as well as indirect stakeholders. The ICG represents the full 

gamut of global stakeholders with an interest in lANA - businesses, individual users, civil 

society, governments, and the technical community. 

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On September 8, 2014, the ICG issued a request for proposals from the three 

operational communities. The request set out detailed requirements that each 

community addressed in its response, describing plans for transitioning each 

community's respective portion of the lANA functions. 

In response to the ICG's request, each of the operational communities in turn 

created its own team to coordinate the development of a plan to submit to the ICG. The 

ICG received the numbers plan from the Consolidated RIR lANA Stewardship Proposal 

("CRISP") Team in January 2015, the protocol parameters plan from the IANAPLAN 

working group of the IETF in January 2015, and the names plan from the CrossCommunity Working Group to Develop an lANA Stewardship Transition Proposal 

("CWG-Stewardship") in June 2015. 

Hundreds of people from all across the world engaged in these operational 

community processes. These included people with technical, policy, business, and 

academic backgrounds, people in the public and private sectors and people working in 

civil society. They put in thousands of hours of work and joined hundreds of conference 

calls and meetings to produce the community plans. 

Upon receiving the plans, the ICG assessed them individually and collectively in 

order to determine whether: (1) the community processes were open and inclusive and if 

consensus was achieved for the plans; (2) the plans were complete and clear; (3) the 

three plans together were compatible and interoperable, provided appropriate 

accountability mechanisms, and were workable; and (4) the plans together met the NTIA 

criteria. The ICG found that all of these criteria were met and proceeded to assemble the 

three plans into a single combined transition proposal. 

On July 31, 2015, the ICG issued a call for public comments on the combined 

transition proposal. The call for public comments concluded on September 8, 2015 and 

resulted in 157 comments from a wide variety of stakeholders, including individuals, 

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38 


operational communities, supporting organizations and advisory committees within the 

ICANN community, businesses and trade associations, civil society groups, 

governments, and others from all regions of the world. The ICG reviewed the comments 

received and sent questions for clarification to the operational communities. The final 

text of the transition proposal incorporates updates resulting from the public comment 

analysis and responses received to the ICG's questions. 

After making these final updates, the ICG achieved unanimous support among its 

members for the transition proposal. The ICG completed its work on October 29, 2015 

and finalized its proposal, with the exception of one item. The names plan was 

conditioned on the development of ICANN-Ievel accountability mechanisms being 

developed in the CCWG-Accountability Proposal. That work was completed in February 

2016, at which point the CWG-Stewardship confirmed to the ICG that its requirements 

had been met. 

On March 10, 2016, the ICG sent the final lANA Stewardship Transition Proposal 

to the ICANN Board and the Board approved the proposal and transmitted it to NTIA, 

together with the CCWG-Accountability Proposal. 

B. Transition proposal overview 

Under the lANA Stewardship Transition Proposal, the global multistakeholder 

Internet community will replace NTIA's stewardship role. The multistakeholder 

community will provide oversight over the lANA functions using a collection of structures 

and processes, many of which have existed for years or decades, and some of which 

are newly proposed. Each operational community has proposed mechanisms to keep 

lANA accountable, review its performance, and take steps to remediate lapses in 

performance, including the ability for the relevant community to choose a new lANA 

functions operator if necessary. While each operational community will maintain its 

independence of process for considering or enacting a change of lANA functions 

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39 


operator, all three communities have explicitly committed to coordinate with each other 

and ICANN to ensure the stability and smooth operation of the lANA functions in the 

event of such a change in the future. 

The transition proposal recommends the formation of a new legal entity, the 

Post-Transition lANA (PTI), as an affiliate of ICANN ("affiliate" is the term used to 

describe the equivalent of a subsidiary in the for-profit world). The PTI will become the 

lANA functions operator, under contract with ICANN. The existing lANA functions, 

administrative staff, and related resources, processes, data, and know-how will be 

legally transferred to PTI from where they sit today within ICANN. PTI will perform all of 

the lANA functions currently covered by the NTIA contract, with the necessary staffing 

and resources to do so. 

For the names functions, the proposal recommends that ICANN (in its role as the 

policy coordinating body for the names community) contract with PTI for operation of the 

lANA naming functions. The number and protocol parameter communities will contract 

with ICANN for the operation of their respective lANA functions and allow ICANN to subcontract that work to PTI. This arrangement is designed for continuity, given that the 

RIRs and the IETF already work directly with ICANN. 

ICANN currently owns certain intellectual property associated with the provision 

of the lANA functions, namely, lANA-related trademarks and domain names. The 

transition proposal includes a requirement that this intellectual property be transferred 

outside of ICANN to an entity that is not the lANA functions operator. The IETF Trust, 

which was created in 2005 to hold intellectual property in service of the advancement of 

the Internet, has been identified by the three operational communities as a suitable 

repository. 

Under the transition proposal, ICANN will remain a not-for-profit public benefit 

corporation formed under the laws of the State of California, in the United States. 

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The following sections provide more detail about the specifics of each operational 

community's plan. 

1. Numbers plan 

ICANN currently provides the lANA functions related to numbers. The numbers 

community proposes that ICANN continue to serve as the lANA functions operator for 

numbers-related functions and perform those services under a to-be-established 

contract with the five Regional Internet Registries (RIRs}. The numbers community 

proposes a contractual Service Level Agreement between the RIRs and the lANA 

functions operator and a Review Committee comprising community representatives from 

each region to advise the RIRs on the lANA functions operator's performance and 

adherence to agreed service levels. 

2. Protocol parameters plan 

ICANN currently provides the lANA functions related to protocol parameters. The 

IETF community expressed satisfaction with its present arrangements with lANA, 

proposing no new organizations or structures in its transition plan. 

Over the past two decades, the IETF, ICANN, and Internet Architecture Board 

(the lAB, a leadership body of the IETF) have together created a system of agreements, 

policies, and oversight mechanisms that apply to the protocol parameters-related lANA 

functions. A memorandum of understanding (MoU} between ICANN and the IETF 

community has been in place since 2000. The MoU defines the protocol parametersrelated work to be carried out by the lANA functions operator for the IETF. Each year 

ICANN and the IETF negotiate a service level agreement that supplements the MoU. 

The lAB appoints the lANA functions operator for protocol parameters (which has 

been and will continue to be ICANN, with the work sub-contracted to PTI) and 

supervises the relationship. Another leadership committee, the IETF Administrative 

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41 


Oversight Committee, works with the lANA functions operator to establish annual 

performance metrics and operational procedures, including public audits. 

Based on the IETF community's satisfaction with the current arrangements, the 

IETF proposed that the lANA protocol parameters registry updates continue to function 

day-to-day, as they have been doing for more than a decade. The protocol parameters 

community proposes to continue to rely on the system of agreements, policies, and 

oversight mechanisms created by the IETF, ICANN, and the lAB. The IETF asks for 

three acknowledgements to be made as part of the transition: 1) That the protocol 

parameters registries are in the public domain; 2) that ICANN carries out the existing 

obligations established under the NTIA contract related to ensuring a smooth transition 

to a successor lANA functions operator, should such a transition be necessary in the 

future, and 3) that ICANN, the IETF, and subsequent lANA functions operator(s) work 

together to minimize disruption in the use of the protocol parameters registries. 

3. Names plan 

As explained in Section II, the numbers and protocol parameters communities 

are comprised of entities distinct from ICANN that define lANA registry policy (the RIRs 

and the IETF, respectively). This allows those communities to enter into agreements with 

ICANN to perform the lANA functions and to use those agreements as the basis for 

holding ICANN accountable. There is at present no such separation within the names 

community: ICANN is both the lANA functions operator and the body where lANA 

registry policy is made for names. This was the genesis of the PTI concept, as it allows 

for contract-based accountability to be applied to the names-related functions, similar to 

the other functions. 

The names community therefore proposes that ICANN enter into a contract with 

PTI to serve as the lANA functions operator for the names-related lANA functions, 

including service level agreements for those functions. The proposal includes the 

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creation of a Customer Standing Committee (CSC) responsible for monitoring the lANA 

functions operator's performance according to the contractual requirements and service 

level expectations. The CSC would be a small committee primarily comprised of 

organizations that operate top-level domains. 

The proposal establishes a multistakeholder lANA Function Review (IFR) 

process to conduct periodic and special reviews of PTI. The IFR will have the ability to 

recommend a separation process that could result in termination or non-renewal of 

ICANN's contract with PTI, among other actions. 

The names community proposes to discontinue the authorization of root zone 

changes that is currently performed by NTIA. The names plan will give authority to the 

ICANN Board to approve any major architectural and operational changes in the 

management of the root zone. This approval is to be based on the recommendations of 

a standing committee of stakeholders and technical experts, the Root Zone Evolution 

Review Committee. 

The names proposal relies on ICANN-Ievel accountability mechanisms that are 

described in the CCWG-Accountability Proposal. These mechanisms are: 

1. ICANN Budget and lANA Budget: The ability for the multistakeholder community 

to approve or veto the ICANN budget after it has been approved by the ICANN 

Board but before it comes into effect. 

2. Community empowerment mechanisms: The empowerment of the 

multistakeholder community to have the following rights with respect to the 

ICANN Board: 

a. The ability to appoint and remove members of the ICANN Board and to 

recall the entire ICANN Board; 

b. The ability to exercise oversight with respect to key ICANN Board 

decisions (including with respect to the ICANN Board's oversight of the 

lANA functions) by reviewing and approving (i) ICANN Board decisions 

13 
43 


with respect to recommendations resulting from an IFR or SpeciaiiFR 

and (ii) the ICANN budget; and 

c. The ability to approve amendments to ICANN's "fundamental bylaws," as 

described below. 

3. lANA Functions Review: The creation of an IFR which is empowered to conduct 

periodic and special reviews of the lANA functions relating to names. IFRs and 

Special IFRs will be incorporated into the reviews mandated by the Affirmation of 

Commitments as set forth in the ICANN bylaws. 

4. Customer Standing Committee: The creation of a esc which is empowered to 

monitor the performance of the lANA functions relating to names and escalate 

non-remediated issues to the ccNSO and GNSO. 

5. Separation process: The empowerment of the Special IFR to determine that a 

separation process is necessary and, if so, to recommend that a Separation 

Cross-Community Working Group be established to review the identified issues 

and make recommendations. 

6. Appeal mechanism: An appeal mechanism, for example in the form of an 

Independent Review Panel, for issues relating to the lANA functions relating to 

names. 

7. Fundamental bylaws: All of the foregoing mechanisms are to be provided for in 

the ICANN bylaws as "fundamental bylaws." A "fundamental bylaw" may only be 

amended with the prior approval of the community and may require a higher 

approval threshold than typical bylaw amendments. 

All of these are provided for in the CCWG-Accountability Proposal that NTIA 

received from the ICANN Board together with the lANA Stewardship Transition 

Proposal. 

14 
44 


C. Summary 

A visual summary of the lANA Stewardship Transition Proposal is provided below. 

IV. Assessment of the Proposal 

The Internet has been a huge success economically, socially, and 

technologically. The core strength of the lANA Stewardship Transition Proposal is that it 

provides continuity with how the Internet works today. 

The transition proposal keeps in place the same operational realities that have 

supported the Internet's enormous growth since the 1990s. It keeps the role of the lANA 

functions team intact and carrying out the same duties as it has today. It ensures that the 

organizations and individuals involved in operating and overseeing critical Internet 

resources continue in their current roles, with enhanced transparency and accountability. 

This includes industry, technical experts, government, and Internet users around the 

15 
45 


world. It relies in large part on time-tested, well-proven structures, processes, and 

bodies. On the day the NTIA contract expires, Internet users should notice no change. 

When NTIA announced its intent to transition its stewardship, NTIA established that 

the transition proposal must have broad community support and address the following 

four principles: 

Support and enhance the multistakeholder model; 

Maintain the security, stability, and resiliency of the Internet DNS; 

Meet the needs and expectations of the global customers and partners of the 

lANA services; and, 

Maintain the openness of the Internet. 

NTIA also explained that it would not accept a proposal that replaces the NTIA role 

with a government-led or an inter-governmental organization solution. 

The lANA Stewardship Transition Proposal meets all of NTIA's criteria. The record 

as reflected by public comments received by the ICG supports this finding. 

Furthermore, vesting the lANA stewardship responsibility in the operational 

communities and using existing multistakeholder structures both help to ensure that the 

NTIA criteria will continue to be met over time. The communities have been working in 

support of the multistakeholder model, Internet openness, and DNS security, stability, 

and resiliency for years if not decades. Their structures provide the appropriate checks 

and balances to ensure that the stewardship of lANA will continue in this vein and will be 

protected against capture by any single interest. 

A. Broad community support 

Community support for the proposal is broad and deep and has been 

demonstrated at every stage of the process. Each operational community ran an open 

and inclusive process in which any interested individual was able to participate. These 

plans were made available for public comment multiple times and received wide 

16 
46 


community review. Each community produced a consensus plan and no community felt 

the need to invoke voting procedures because each arrived at consensus without them. 

Together, the openness and inclusiveness of the processes and the consensus results 

indicate broad community support. 

When considering the transition proposal as a whole, community support has 

been demonstrated in a number of different ways. A significant majority of commenters 

who submitted comments during the ICG public comment period support the proposal. 

These commenters included individuals, operational communities, supporting 

organizations and advisory committees within the ICANN community, businesses and 

trade associations, civil society organizations, governments, and others from across all 

regions of the world. Thus community support for the transition proposal is broad both in 

diversity of interests and geography of origin. 

Furthermore, the consensus of the ICG in support of the transition proposal 

provides a powerful demonstration of the breadth of community support. ICG members 

serve on behalf of 13 constituencies that are all intimately concerned with the outcome 

of the lANA stewardship transition and that each encompass a wide swath of the 

community. That ICG members have full consensus in support of the transition proposal 

is a testament to the support in each constituency. 

B. Support and enhance the multistakeholder model 

The transition proposal supports and enhances the multistakeholder model 

because it leverages existing multistakeholder arrangements, processes, and paradigms 

in defining the post-transition lANA oversight and accountability mechanisms. Each 

component of the proposal has this feature. 

The names plan maintains the existing framework of ICANN for continued 

multistakeholder oversight of the lANA functions operation. The names plan reinforces 

the multistakeholder model by retaining the functional separation between policy 

17 
47 


development processes and lANA. The ICANN policy development process remains 

bottom-up, transparent, and inclusive of all stakeholders. lANA remains focused on the 

needs of the operational communities, with transparent oversight by the CSC and IFR, 

both of which include non-ICANN participants and the latter of which is explicitly 

constituted as a multistakeholder entity. 

The numbers plan is based in the existing, long-established RIR structure. The 

RIRs are widely regarded as healthy examples of Internet technical organizations 

operating within the multistakeholder model of Internet governance. Structurally they are 

open, transparent and accountable not-for-profit organizations, with well-established 

governance mechanisms and open participatory processes for policy development in 

their respective regions. In addition, they and their communities are active participants in 

and supporters of multistakeholder processes of ICANN, the Internet Governance 

Forum, and others. Accordingly, the numbers plan supports the existing multistakeholder 

mechanisms of the RIR system, and enhances them (and hence the overall 

multistakeholder model) by introducing improvements in transparency and accountability 

related to the performance of the numbers-related lANA functions. 

The protocol parameters plan is based in the IETF structure. Participation in the 

IETF is open to all individuals regardless of which stakeholder group or sector they may 

be from. The protocol parameters plan supports and enhances the multistakeholder 

model by relying on IETF processes and voluntary agreements between the IETF and 

ICANN for the performance of the lANA functions related to protocol parameters. IETF 

processes could be used to amend governance of the protocol parameters function in 

the future. Anyone may propose amendments to those processes, and anyone may take 

part in the decision processes. 

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C. Maintain the security, stability, and resiliency of the Internet 

DNS 

The transition proposal calls for the lANA functions operator to be transferred to 

the PTI, which will be an affiliate (subsidiary) of ICANN. Hence operational roles are 

maintained. The proposal envisages the names aspect of the current NTIA oversight and 

contracting authority being transferred to ICANN. The separation of PTI as an affiliate 

will ensure the independence of that oversight role from the contractor providing the 

service. 

This arrangement introduces minimum change and keeps the current lANA 

functions operation team intact and carrying out the same role that it has today. Only an 

organizational change is proposed to ensure that the independence of oversight is 

maintained. 

The proposal sustains and enhances procedures for identifying and rectifying any 

potential performance degradations that may arise in the provision of the lANA functions. 

A shared commitment to remedy shortfalls in performance is inherently supportive of the 

security, stability and resilience of the DNS. 

Each of the three operational communities either has already produced or is 

working to produce a clear set of service level expectations for their portion of the lANA 

functions. Establishment and ongoing refinement of such clear expectations is 

fundamental to the security, stability and resilience of the operation of the DNS. 

Finally, Verisign currently serves as the Root Zone Maintainer under a 

cooperative agreement with NTIA. Separate from the ICG transition proposal 

development process, there has been active work to replace this with an agreement 

between ICANN and VeriSign. Such an agreement that clearly defines the roles and 

responsibilities of both parties is essential for the secure, stable and resilient operation of 

the root zone of the DNS when the NTIA withdraws from the root zone management 

process. 

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49 


D. Meet the needs and expectations of the global customers and 

partners of the lANA services 

All three operational communities determined that the global customers and 

partners of the lANA services, including the generic and country code top-level domain 

operators and their communities of stakeholders; the RIRs; and the IETF are presently 

satisfied with the performance of the lANA functions by ICANN. The transition proposal 

is structured such that the PTI will continue to provide the lANA functions to its global 

customers and partners post-transition in essentially the same manner as ICANN's lANA 

staff does today. In the names community, lANA customers expressed support for a 

clearer separation between ICANN as policy developer and lANA as administrator, and 

the PTI separation accomplishes this. Also, the proposal makes it possible for each 

operational community to choose a different lANA functions operator should the need 

arise, a capability which does not currently exist for numbers and names. Thus the 

needs and expectations of the global customers and partners should continue to be 

satisfied after the transition just as they are currently. 

E. Maintain the openness of the Internet 

The transition proposal requires that the lANA services, associated policy 

development processes, and lANA registries remain fully open and accessible just as 

they are today. 

20 
50 


F. Does not replace NTIA's role with a government or intergovernmental organization 

The transition proposal does not replace NTIA's role with a government or intergovernmental organization. 

The names plan replaces NTIA's roles as they relate to the names-related lANA 

functions with the combination of ICANN, the CSC, and the IFR, none of which are 

governments or inter-governmental organizations. Establishing the PTI as an affiliate of 

ICANN allows the community to rely on ICANN's accountability mechanisms and 

safeguards to prevent capture, including by governments. ICANN relies on a 

multistakeholder model of consensus-based decision-making that in itself minimizes the 

chances of capture by a single entity or special interest. By allowing for open, inclusive 

participation by any individual or organization, striving for consensus rather than 

defaulting to voting, and conducting work transparently in public view, the 

multistakeholder model defends against the ability of any single entity to have an 

outsized impact over decisions and outcomes. These safeguards will be further 

enhanced through the implementation of the CCWG-Accountability Proposal, which 

empowers the multistakeholder community with enhanced rights to engage with the 

ICANN Board, budget, and bylaws; to appeal decisions; and to remove Board members. 

The numbers plan essentially places the RIRs in the role currently occupied by 

the NTIA. The RIRs are independent, non-governmental, self-funded not-for-profit 

organizations, accountable to their regional memberships and communities through welldeveloped mechanisms. On behalf of their communities they will contract with ICANN, 

through the proposed service level agreement, to provide the required numbers-related 

functions. 

The protocol parameters plan relies on voluntary agreements between the IETF, 

ICANN, implementers and their users for the stewardship of the protocol parametersrelated functions. The IETF has significant structural safeguards in place that prevent it 

21 
51 


from capture or take-over by a government or inter-governmental entity. Every decision 

made in the IETF is done in full public view. Appointments to the IETF's leadership 

committees are time-limited and are made by a randomly selected group of volunteers. 

Any decision can be appealed by any IETF participant, and anyone in a leadership 

position can be recalled for their actions. All decisions are made by the consensus of the 

participants- there is no voting or campaigning. Collectively, these measures defend the 

IETF and the protocol parameters registries from capture by any particular entity, 

governmental or otherwise. 

VI. Conclusion 

Support for the lANA Stewardship Transition Proposal is broad and deep. 

Businesses, individuals, governments, civil society organizations, academics, and others 

from all around the world came together to deliver a proposal that is good for the 

Internet. All of those who are most invested in the smooth functioning of the Internet 

believe in this proposal. 

One of the main reasons for that is that by and large the proposal maintains 

business as usual for the operation of the lANA functions. The proposal builds on the 

processes that have helped make the Internet a success. The proposal ensures that 

they will continue to work well going forward. 

Finally, the transition proposal meets the US government's criteria. For that 

reason and many others, the ICG unanimously supports the transition proposal and 

recommends that all affected parties implement it. 

The ICG will remain constituted as a body while the US government conducts its 

review of the proposal. We would be more than happy to respond to questions from 

members of Congress or anyone else about the transition proposal or the processes that 

led to its creation. 

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52 


Thank you for your time, interest, and thoughtful consideration of this matter of 

great importance for the Internet. 

23 
53 

Mr. WALDEN. Dr. Cooper, thanks again for your testimony and 

for your work on this very important initiative. We will now go to 

Sally Shipman Wentworth, Vice President of Global Policy Development, Internet Society. Ms. Wentworth, thank you for being here. 

Please go ahead. 

STATEMENT OF SALLY SHIPMAN WENTWORTH 

Ms. WENTWORTH. Thank you. Chairman Walden, Ranking Member Eshoo, and members of the subcommittee, thank you for today’s opportunity to testify before you on the transition of oversight 

of IANA, and the impact that it will have on global Internet policy, 

and on the future of the open Internet. 

My name is Sally Shipman Wentworth. I am the vice president 

of Global Policy Development for the Internet Society. The Internet 

Society is a global organization with more than 80,000 members 

and 116 chapters worldwide. It is also the organizational home for 

the Internet engineering task force. And in its March 2014 announcement, the NTIA identified the Internet Society as a directly 

affected party to this transition. 

Two years ago, the NTIA announced its intent to transition the 

administration of the IANA functions. We now believe that we have 

reached a necessary and important step in ensuring the continued, 

uninterrupted operation of the global Internet, and in laying the 

best foundation for its future. We strongly support and endorse the 

resulting IANA stewardship transition plan and the recommendations to enhance ICANN accountability that have been delivered to 

the NTIA. 

Taken together, this is a plan that, first, ensures the continued 

stability and security of key technical functions that are a core part 

of the smooth operation of the Internet. Second, it provides a path 

forward for strengthening ICANN’s accountability to its community. And, third, meets the criteria set by the NTIA in its original 

announcements. 

Through a global multistakeholder process that engaged industry, civil society, the technical community, governments, and many 

others, the community has reached consensus on a proposal that 

we believe will provide operational stability, reliability, and continuity for the global Internet. 

Mr. Chairman, the Internet is a transnational, borderless, network of networks, comprised of countless individual networks that 

voluntarily connect around the globe. The basic architecture of the 

Internet that we all rely upon every day is global and distributed. 

No one entity, Government or otherwise, controls it. The Governance of the Internet reflects this distributed approach. This model 

of governance is often referred to as the multistakeholder model. In 

essence, this is a way of getting things done that is bottom-up, inclusive, transparent, and that ensures that the relevant expertise 

can be brought to the table to solve hard problems. Like the Internet architecture itself, multistakeholder Internet governance ensures that no one stakeholder captures or takes over the Internet 

at the expense of others. 

The management of the IANA functions from the earliest days 

of the Internet through to the present embodies a multistakeholder 

model based on distributed coordinations and transparent governVerDate Mar 15 2010 12:54 Mar 27, 2017 Jkt 037690 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 C:\USERS\WLAUFERT\DESKTOP\114X128PRIVATIZINGIANAXPDFMADE WAYNE
54 

ance. The proposal before the United States Government ensures 

that the multistakeholder systems that have facilitated the security 

and stability of the IANA functions remain strong and intact. Policy development for the IANA functions will remain distributed 

among three organizations. The Internet engineering task force, 

the regional Internet registries, and ICANN will each continue to 

employ multistakeholder processes to develop and manage the 

Internet identifiers. 

The stewardship of the IANA functions will be carried out by 

ICANN, itself a multistakeholder entity. Importantly for this subcommittee, the transition proposal directly addresses concerns 

about capture or control of the IANA by any one stakeholder, including governments. Any multistakeholder process must be vigilant about preventing capture. In the transition proposal, no single 

party has undue control. And there are protocols in place to prevent any individual organization or Government from seizing jurisdiction or excluding others from the stewardship process. 

In conclusion, I want to leave you with one key message: The 

Internet Society firmly believes that the transition plan that was 

sent to NTIA upholds the processes and principles that have served 

as a foundation for the Internet’s growth and development to date. 

The communities have worked hard to ensure that the IANA functions will continue to operate in a predictable manner, consistent 

with the need to maintain the security, stability, resiliency, and 

openness of the Internet. 

And finally, Mr. Chairman, I want to use this opportunity to 

thank this subcommittee for its steadfast support for the multistakeholder model and for your continued engagement to ensure a 

smooth and stable transition of the IANA functions. Thank you. 

[The prepared statement of Ms. Wentworth follows:] 

55 


Testimony of Sally Shipman Wentworth 

Vice President of Global Policy Development, Internet Society 

BEFORE THE U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY 

March 17, 2016 

SUMMARY 

The Internet Society thanks the Subcommittee for the opportunity to testify on the transition of 

the lANA functions to the global multistakeholder community. After two years of work, we 

believe that we have reached a necessary and important step in ensuring the uninterrupted 

operation of the global Internet and in laying the best foundation for its future. 

We strongly support and endorse the resulting lANA Stewardship Transition Plan and the 

Recommendations to Enhance ICANN Accountability that have been delivered to NTIA. Taken 

together, this is a plan that: 1) Ensures the continued stability and security of key technical 

functions that are a core part of the smooth operation of the Internet, 2) provides a path 

forward for strengthening ICANN's accountability to its community; and 3) meets the criteria 

set by the NTIA in its original announcement. 

Through a global, multistakeholder process, the community has reached consensus on a 

proposal that will provide operational stability, reliability, and continuity for the global Internet. 

In short, given the original intent to transition the lANA functions, the maturity of the 

multistakeholder process by which the transition plan was developed, and the strength of the 

plan itself, the Internet Society believes that now is the time to complete the transition nearly 

20 years after it was first envisioned. 
56 


Testimony of Sally Shipman Wentworth 

Vice President of Global Policy Development, Internet Society 

BEFORE THE U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY 

March 17, 2016 

Introduction & Overview 

Chairman Walden, Ranking Member Eshoo, and members of the Subcommittee, thank you 

for today's opportunity to testify before you on the transition of oversight of the Internet 

Assigned Numbers Authority (lANA), and the impact it will have on global Internet policy and 

the future of an open Internet. 

My name is Sally Shipman Wentworth. I am the Vice President of Global Policy 

Development for the Internet Society. The Internet Society is a global organization with more 

than 80,000 members and 116 chapters worldwide, and is the organizational home of the 

Internet Engineering Task Force. The global Internet Society is dedicated to ensuring the open 

development, evolution, and use of the Internet for the benefit of people throughout the 

world. In its March 2014 announcement\ the United States National Telecommunications and 

Information Administration (NTIA) identified the Internet Society as a "directly affected party" 

to this process. The Internet Society has two seats on the lANA Stewardship Transition 

Coordination Group (ICG) and has been actively participating in all lANA-related discussions in 

the three operational communities. 

1 http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-namefunctions 

2 
57 


It has been two years since the NTIA announced2 its intent to transition the legacy 

stewardship role played by the NTIA in the administration of the lANA functions. After two 

years of work, we believe that we have reached a necessary and important step in ensuring the 

continued uninterrupted operation of the global internet and in laying the best foundation for 

its future. We strongly support and endorse the resulting lANA Stewardship Transition Plan 

and the Recommendations to Enhance ICANN Accountability that have been delivered to 

NTIA. Taken together, this is a plan that: 

i. Ensures the continued stability and security of key technical functions that are a 

core part of the smooth operation of the Internet; 

ii. Provides a path forward for strengthening ICANN's accountability to its community; 

and 

iii. Meets the criteria set by the NTIA in its original announcement. 

Through a global, multistakeholder process that engaged industry, civil society, the technical 

community, governments and many others, the community has reached consensus on a 

proposal that will provide operational stability, reliability, and continuity for the global Internet. 

Accordingly, we now urge the United States government to approve the final communitydeveloped proposal before it. 

'https:ijwww.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-namefunctions 

3 
58 


Defining lANA and its Importance 

The Internet began as a research project nearly a half-century ago, and today's Internet is 

made up of billions of connected devices and thousands of networks. Though most of us never 

think about it, in order for these devices and networks to connect and communicate with each 

other they must use common standards, protocols, and parameters. In essence, the lANA 

functions ensure that Internet users successfully get to the places they want to go on the 

Internet in a reliable fashion. 

In its earliest days, dating back to 1972, the lANA Functions were administered by one 

individual, Dr. Jonathan B. Postel; later, the administration of the functions was housed at the 

University of Southern California Information Sciences Institute (USC-lSI), where Dr. Postel 

began working in 1977. In 1995, the lANA functions were included as part of a research 

contract between the Defense Advanced Research Projects Agency (DARPA) and USC-lSI. In 

2000, the Department of Commerce NTIA contracted with the Internet Corporation for 

Assigned Names and Numbers (ICANN) for performance of the lANA. This arrangement 

remains in place today. 

"lANA Functions" is the name used today to refer to the coordination, and publication of 

three sets of Internet identifiers. Some of these identifiers are parameters, such as those used 

by Internet protocols like HTTP; some of them represent numbering resources, like Internet 

addresses; and, others represent domain names in the Domain Name System (DNS) root zone. 

Regardless of the type of identifier, the lANA functions ensure that the entries are managed for 

4 
59 


uniqueness and made available in publicly accessible registries or tables so there can be no 

confusion. 

For an easy-to-understand explanation of the lANA functions, the Internet Society has 

published "The lANA Functions: The Basics"3

• 

Each of the three lANA functions is associated with a particular community that has a direct 

operational or service relationship with the lANA functions operator-specifically, the Internet 

Engineering Task Force (IETF) for protocol parameters, the Regional Internet Registries (RIRs) 

for number allocations, and the ICANN community for names. These communities have often 

been referred to as the "operational communities"4 or "directly affected parties"5 and it is 

these communities that define the policies for the values that lANA keeps track of. 

The U.S. Government's contracting role, referenced above, in the lANA functions was 

always viewed as a temporary measure- a "holding pattern"- until the appropriate private 

sector and multistakeholder mechanisms could be put in place to address the needs and 

realities of the growing Internet. 

This has been the policy of several Administrations as was first outlined in the 1998 

Statement of Policy, Management of Internet Names and Addresses. The development of the 

1998 policy statement was guided by consultations and public input, including over 430 written 

3 The lANA Functions: The Basics, 12 August 2014, http://www.internetsociety.org/doc/iana-functions-O 4 lANA Stewardship Transition Coordination Group Issues Request for Transition Proposals and Suggested 

Timeline, 9 September 2014, https:ljwww.icann.org/news/announcement-2014-09-09-en 

5 The "directly affected communities" are referenced in the NTIA announcement regarding the lANA transition: 

http:ljwww.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-namefunctiot}_!i 

5 
60 


comments from public and private sector stakeholders from around the world. So, it is 

important to remember that this transition was envisioned as not just a policy of the U.S. 

Government, but also an expectation on the part of a diverse range of stakeholders from the 

United States and beyond. 

Validating the lANA Stewardship Transition Proposal: Meeting NTIA 

Criteria 

To carry out this long-standing commitment to a transition, the United States Department 

of Commerce called upon the global Internet community to develop a proposal to transition 

the current role played by NTIA in the coordination of the Internet's domain name system 

(DNS). In its 20141ANA transition announcement, NTIA specified evaluation principles that this 

lANA transition plan must meet: 

i. Support and enhance the multistakeholder model; 

ii. Maintain the security, stability and resiliency of the Internet DNS; 

iii. Meet the needs and expectations of the global customers and partners of the lANA 

services; and 

iv. Maintain the openness of the Internet. 

Further, NTIA specified that the transition proposal must not replace NTIA's role with a 

government-led or intergovernmental organization solution. 

The lANA Transition Coordination Working Group (ICG) proposal provides a plan that meets 

the criteria set forth by the NTIA, and will ensure the continued stability of key technical 

functions that are a core part of the smooth operation of the Internet. The complementary 

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ICANN Accountability Proposal, developed by the ICANN Cross Community Working Group, is 

equally important because it provides a path forward for strengthening the stewardship role of 

the ICANN community. The accountability recommendations deepen and enhance ICANN's 

legitimacy and stability as the provider of the lANA functions. 

The Internet Society believes that, together, the lANA Stewardship Transition Proposal and 

the Recommendations to Enhance ICANN Accountability meet the principles set forth by the 

United States Government. 

As we enter the next phase of the Internet's history that will reach billions of new users 

and will continue to transform societies, the NTIA principles provide a clear road map for the 

future. They are rooted in the origins of the Internet, have been corroborated through 

international consensus, and are designed to ensure the long-term growth and stability of the 

Internet. Future administration of the lANA functions requires continued and strictadherence to these criteria. 

My organization and countless others around the world are committed to working 

together and working diligently to ensure that these core principles are upheld in the years to 

come. 

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Let's take these principles one by one: 

i. Support and enhance the multistakeholder model 

The Subcommittee can be assured that the proposed transition upholds the 

multistakeholder model. The operational communities that establish policy for the identifiers in 

the lANA registries all rely on participatory and open processes that will remain in place posttransition. The final proposal is the outcome of discussions conducted under inclusive and 

participatory processes of the relevant communities. The various processes were transparent 

and open; mailing lists were inclusive and publicly archived; and, throughout the process, 

communities held open, in-person meetings and open teleconferences. 

Under the proposed plan, operational communities maintain their bottom-up 

consensus processes with regards to the lANA functions; they also maintain the ability to make 

their own arrangements and agreements for the performance of the lANA functions. 

Thus, we agree with the ICG's assessment that the combined proposal meets the NTIA 

principles: the post-transition policy processes for lANA will continue to be based in 

multistakeholder arrangements. 

With regards to the interrelated ICANN Accountability Proposal, which was adopted by 

acclamation at the ICANN 55 meeting earlier this month, we believe that it directly addresses 

the possibility of a hostile "takeover," something of utmost importance for the future of the 

Internet. No single party has undue control, and there are protocols in place to prevent any 

individual, organization or government from seizing jurisdiction or "elbowing out" others from 

the stewardship process. The proposal also is crafted so that lANA remains independent of any 

8 
63 


government or intergovernmental organization. The Internet Society is confident that the 

current proposal creates adequate mechanisms to prevent capture by governments or other 

entities ensuring the core lANA functions will continue to operate free of undue influence. 

One way this is achieved is through the enhanced community powers, which now exist 

to ensure ICANN's accountability to its stakeholders. The engagement-escalation-enforcement 

approach provides several layers of opportunity for the community, the ICANN Board and 

ICANN staff to work together to resolve disputes through consensus instead of turning to the 

courts. This constructive approach keeps power where it belongs-with the multistakeholder 

community. 

ii. Maintain the security, stability and resiliency of the Internet ONS 

The Internet Society believes that the lANA Stewardship Transition will maintain the 

security, stability, and resiliency of the Internet Domain Name System. 

A key purpose of the lANA functions is to ensure global uniqueness in the allocation of 

Internet names, numbers, and protocol parameters. Ensuring that the content contained in the 

lANA registries is accurate, available and transparently administered provides for the security, 

stability, and resiliency of the overall system. 

Operationally, the final transition proposal maintains the appropriate separation 

between policy development and implementation, which is key in further ensuring the overall 

stability and resiliency of the Internet. With respect to the lANA department, the separation of 

the Post-Transition lANA (PTI) within ICANN ensures independence of policy development from 

the provision of service. Further, the proposal foresees the need to ensure appropriate staffing, 

9 
64 


resourcing and know-how to run the lANA functions. The proposal also includes an important 

shared commitment to performance and performance metrics that are crucial for the lANA 

functions operation. 

The United States Government has always been very explicit about the need to preserve 

the security, stability, and resiliency of the DNS. This requirement has been part of its various 

agreements6 and Affirmation of Commitments7 with ICANN. Through the proposal on ICANN 

Accountability, ICANN's role to ensure the security, stability and resiliency of the Domain Name 

System will be made explicit in revisions to ICANN's bylaws that clarify ICANN's Mission and a 

series of commitments in this regard. Through periodic reviews, the ICANN Board and 

community remain committed to enhance the operational stability, reliability, resiliency, 

security, and global interoperability of the DNS. 

iii. Meet the needs and expectations of the global customers and partners of the 

lANA services 

As noted above, each of the lANA functions is associated with a community that has a 

direct operational or service relationship with the lANA functions operator-specifically, the 

Internet Engineering Task Force (IETF) for protocol parameters, the Regional Internet Registries 

(RIRs) for number allocations, and the Internet Corporation for Assigned Names and Numbers 

(ICANN) communities for names. 

6 Management of Internet Names and Addresses, https:/(www.icann.org/resources/unthemed-pages/whitepaper-2012-02-25-en 

7 Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for 

Assigned Names and Numbers, https:l/www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-

~ 

10 
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The post-transition lANA arrangements must continue to support the performance of 

the lANA functions in a predictable, reliable, and responsive way, consistent with operational 

excellence. They should continue to be performed in a neutral and transparent manner. like 

any service, they should be periodically reviewed to ensure they are being performed in line 

with customer needs and expectations. 

The three operational communities have all confirmed that they are satisfied with the 

performance of the lANA functions by the lANA department of ICANN. Importantly, because 

each operational community will have a contractual relationship with the lANA functions 

operator under the proposed plan, each operational community will have the right to select a 

new entity for the performance of the lANA functions as a last resort. These contractual 

relationships provide important clarity and reflect the needs and expectations of the 

operational communities. 

Of course, the operational communities will need to update contractual agreements 

with ICANN for the provision of the lANA functions in order to align with community 

expectations. These agreements, which are currently under negotiation, must be completed 

prior to the transition. In addition, by enhancing ICANN accountability the plan ensures that the 

"customers" of the names functions have the mechanisms in place needed to both identify and 

address performance issues, should they arise. 

iv. Maintain the openness of the Internet 

Openness is a fundamental value and characteristic of the Internet, and promotes trust 

and confidence. In reviewing the transition proposal, the Internet Society believes that, post11 
66 


transition, the lANA functions will remain open and will continue to contribute to the openness 

of the Internet itself. For example, the processes by which policies are set by the lANA 

operational communities will remain open to anyone wishing to contribute. Documentation 

and discussions related to lANA functions' policy development, such as drafting proposals and 

email discussion lists, are also openly available. 

Furthermore, information on the identifier allocations made by the lANA function itself 

is freely available on the Internet- there are no membership requirements or fees associated 

with accessing or using it. Similarly, registries related to lANA are open and in the public 

domain and it is the expectation of the lANA directly affected parties that will remain so. 

The principle of openness also means being open to changes and evolution in 

architecture and systems. On the Internet there are no permanent favorites. Ultimately, the 

use of the lANA functions is a choice by the global community because of the value it brings to 

the Internet. There will undoubtedly be advances in technology, changes to the underlying 

infrastructure, and the development of new ways to navigate on the Internet. These may mean 

that the roles of the DNS and lANA functions will change over time. 

The transition proposal must not replace NTIA's role with a government-led or 

intergovernmental organization solution. 

In the 1998 Statement of Policy, it was noted that that NTIA's stewardship of DNS 

functions would be temporary and phased out. It also recognized that given the growing global 

and commercial nature of the Internet it was neither tenable nor appropriate for the U.S. 

Government to continue in this role or for any other government to assume it. 

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67 


NT I A's role as temporary steward of the lANA functions gave stakeholders the 

opportunity to develop and test new structures that, in the long run, would ensure the nongovernmental management of the broader DNS. These structures have emerged through 

bottom-up, multistakeholder collaboration, consistent with the traditions of the Internet. 

Upholding the multistakeholder approach requires that, post-transition, the lANA 

functions must not be subject to capture by a single set of stakeholders, government or 

otherwise. Multistakeholder collaboration is fundamentally predicated on the notion that no 

single set of interests automatically hold sway, but rather that all stakeholders have an 

opportunity to contribute to the discussion and to collaborate in finding solutions. Undue 

capture or influence by governments or another stakeholder group8 would also be an 

unacceptable violation of the multistakeholder principle. 9 

This basic premise is also reflected in ICANN's accountability enhancements. Under the 

new proposal, advice from the ICANN Governmental Advisory Committee (GAC) needs to have 

the full consensus of the governments before the ICANN Board is required to act on it. In this 

context, consensus is understood to mean the practice of adopting decisions by general 

agreement in the absence of any formal objection. Moreover, the new proposal also foresees 

the scenario where the broader ICANN community can hold the ICANN Board accountable for 

8 Including, for example, ICANN by-laws changes that would mandate acceptance of advice or recommendations 

from any single stakeholder group. 

9 In the context of comments to ICANN regarding proposed changes to the by-laws regarding consideration of GAC 

advice, we cautioned about upsetting the balance of influence of stakeholders. 

http:ljforum.icann.org/lists/comments-bylaws-amend-gac-advice-15aug14/pdf4dvjcTJScU.pdf 

13 
68 


following GAC advice that does not follow its own multistakeholder and bottom up policy 

development process. 

The lANA stewardship transition does not replace NTIA's role with a government-led or 

inter-governmental solution. We believe that the transition proposal puts in place robust and 

enforceable procedures that will prevent any single group from becoming dominant or 

controlling. 

The Time is Right for the lANA Stewardship Transition 

Since the early days of Internet development, the United States Government has 

consistently supported the development of the Internet premised upon the inclusive and open 

participation of stakeholders. Furthermore, numerous bipartisan resolutions of the U.S. Senate 

and House of Representatives10 have affirmed support for the multistakeholder model of 

Internet governance. In particular, this Subcommittee has been deeply engaged in these issues; 

we thank you for your long-standing support and engagement in multistakeholder Internet 

governance. 

The Internet Society believes that a successful lANA transition will strengthen the 

multistakeholder model, which has been a foundation for the Internet's success. 

Multistakeholder governance processes reflect a long-standing approach to the 

Internet's operations and governance; indeed, they are at the heart of the Internet's global and 

operational growth. The underlying technical philosophy of the Internet rests on the notion of 

10 S.Con.Res.SO and H.Con.Res.127 

14 
69 


stakeholders working together within an inclusive framework that is flexible enough to meet 

evolving individual requirements, while also creating a system that meets the needs of the 

whole. From the way the technical community has historically created standards to the way 

public policy issues are addressed, multistakeholder participation has always been key in 

allowing the healthy evolution of the Internet. The lANA transition process not only reaffirms, 

but further strengthens this model. 

Over the past two years, the community has engaged in an incredibly broad, high profile 

test of the multistakeholder model. Through diverse and inclusive channels of participation, a 

wide range of stakeholders initiated a global dialogue that led to a tangible outcome: a 

transition proposal that meets the NTIA criteria. The culmination of this work represents a 

significant milestone for both the continued operation of the Internet and for the 

multistakeholder model of Internet governance. 

The transition plan will ensure the lANA functions remain a point of diverse partnership 

and collaboration and will strengthen fundamental factors that led the Internet from university 

laboratories to the ubiquitous worldwide network that drives economic growth and innovation 

today. 

The plan provides continuity for the processes and principles that have served as a 

foundation for the Internet's growth and development to date. The communities have worked 

hard to ensure that, after the transition takes place, the lANA functions will continue to operate 

in a predictable manner, consistent with the need to maintain the security, stability, resiliency 

and openness of the Internet. The Internet community is clearly committed and prepared to 

15 
70 


carry out stewardship of the lANA functions in an open, inclusive, transparent and accountable 

manner. 

Given the original intent to transition the lANA functions, the maturity of the 

multistakeholder process by which the transition plan was developed, and the strength of the 

plan itself, now is the time to complete the transition nearly 20 years after it was first 

envisioned. 

Conclusion: In Support of the Transition Plan 

In conclusion, Mr. Chairman and members of the Subcommittee, we believe that by 

adhering to the core Internet principles outlined by NTIA in its 2014 announcement, we will 

help the Internet continue to evolve. If the current lANA functions are looked upon as starting 

points, and not artificial limits to growth, we believe that 50 years from now, the Internet will 

only be more robust, more inclusive and more resilient. 

Collaborative governance, cooperation, and collaboration between and among 

stakeholders is the only viable path forward for a sustainable, global, independent, open, and 

empowering Internet of the future. The lANA Stewardship Transition Plan is a testament to this 

approach. 

The consensus the Internet community has reached on the proposal transmitted to the 

NTIA confirms the strength of the multistakeholder process in tackling issues important to the 

continued growth and evolution of the Internet. For us, this is "the Internet way". It isn't always 

16 
71 


pretty and it can be very complex to navigate, but this process shows that the multistakeholder 

model can deliver concrete solutions to complex problems. 

Yet there is still more and careful work to be done to turn the promise of the final proposal 

into reality. The community now has a responsibility to ensure that the plan, if approved by 

the NTIA, is faithfully and carefully implemented in a timely way. 

Congress has played an important leadership role in ensuring a smooth transition. I urge the 

Subcommittee to remain diligent in its oversight as the process moves forward. 

Again, I would like to congratulate the Internet community for reaching this critical 

milestone. The Internet Society remains fully engaged in seeing this most important transition 

to its finish, and welcomes further collaboration with the Subcommittee and its Members as 

this process continues. Thank you for considering my views. 

17 
72 

Mr. WALDEN. Thank you, Ms. Wentworth. We appreciate your involvement and your testimony. We will go to Audrey Plonk, the Director, Global Security and Internet Governance Policy, for Intel 

Corporation. Ms. Plonk, we are glad to have you here this morning. 

Please go ahead. 

STATEMENT OF AUDREY PLONK 

Ms. PLONK. Chairman Walden, Ranking Member Eshoo, and 

members of the subcommittee, thank you for the opportunity to testify today. My name is Audrey Plonk. And I am Intel’s director of 

Global Cybersecurity and Internet Governance Policy. And I am 

very pleased to address the committee on the important issue before you, the transition of the IANA to the multistakeholder community. 

Intel fully supports Congress’ commitment to multistakeholder 

Internet governance. Part of that commitment is to respect and 

abide by the work of the multistakeholder communities in developing the IANA transition proposal. Intel believes that the proposal 

meets the requirements articulated by NTIA in 2014. 

First, I would like to provide some background on my experience 

at Intel and our commitment to an open, global, interoperable, 

trustworthy, and stable Internet. As the director of Global Cybersecurity and Internet Governance Policy, I lead a global team of policy experts focused on Internet policy issues, like governance, privacy, and security. As the world leader in computing innovation, 

Intel sees technology as more than just a practical tool. We design 

and build the essential technologies foundational to the world’s 

interconnected computing devices. Connectivity to a global, open, 

interoperable, trustworthy, and stable Internet is critical to realizing the promises of a new, and even better, connected computing 

era. And successful multistakeholder governance is critical to provide the stability that the market needs to continue investing in 

the Internet and American technology innovation. 

I testified before this committee last spring on stakeholder perspectives on the IANA transition. In my testimony, I described how 

Intel’s business plan assumes that the Internet will continue to 

grow at rates similar to that experienced in the last 15 years. This 

growth will make it possible to accommodate the Internet of 

Things, wearable computing, natural language recognition, nanotechnology, quantum computing, and virtual reality. Intel’s views 

on the transition are simple, we support it, and we believe it meets 

the conditions outlined by NTIA in 2014, for a few reasons that I 

want to highlight. 

One, the proposal has broad community support as evidenced by 

approval of the multistakeholder community last week in Marrakesh. Two, the proposal supports and enhances multistakeholder 

model, governance models in several important ways. It removes a 

single Government from any disproportionate role in oversight. It 

creates mechanisms to prevent capture by any single group of 

stakeholders. It creates additional mechanisms for the community 

to engage in Internet governance. 

Two, the proposal meets the expectations of the constituents of 

the IANA services, as evidenced by the relationship documents 

drafted by the three IANA communities, and ICANN through their 

73 

establishment of oversight mechanisms to ensure performance levels of the IANA registries. 

Three, the proposal maintains security, stability, and resilience 

of the Internet’s Domain Name System in numerous ways. Technically, it changes little. It will be business as usual. It provides 

for a sole designator model that was chosen precisely to support 

stability of the organization, while also empowering the community. It establishes the post-transition IANA to maintain the registry of domain names, ICANN contract with this PTI to maintain 

the numbers and protocols registries as well. Importantly, the PTI 

has been structured so it can be separated from ICANN. 

Numerous committees will be established to monitor performance 

of the IANA during implementation and throughout the transition. 

And, finally, a parallel testing process for the root zone is scheduled to begin in April. This testing process will ensure stability 

through the changes to the root zone administration process. 

Number five, the proposal maintains the openness of the Internet, keeping the fundamentals of open standards, open communications, and multistakeholder governance. And six, the replacement 

of NTIA is not another governmental entity. Intel has been deeply 

engaged in the process. And we will continue to engage throughout 

the implementation of this plan and as the transition is completed. 

Throughout the transition process, there has been little disagreement about what kind of Internet we want in the future. The challenge has really been to translate the principles upon which we all 

agree, global, open, interoperable, stable, and trustworthy, into an 

actionable plan that meets the constituent multistakeholder community’s needs. 

We look forward to NTIA’s and Congress’ review of this plan. 

And we are eager to implement it and complete the transition. 

Thank you. 

[The prepared statement of Ms. Plonk follows:] 

74 


WRITTEN STATEMENT FOR THE RECORD OF 

AUDREY PLONK 

DIRECTOR, GLOBAL CYBERSECURITY AND INTERNET 

GOVERNANCE POLICY 

INTEL CORPORATION 

BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES 

SUBCOMMITEE ON COMMUNICATIONS AND TECHNOLOGY 

ON "PRIVATIZING THE INTERNET ASSIGNED NUMBERS 

AUTHORITY" 

March 17, 2016 

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SUMMARY OF MAIN POINTS 

Last week, the Board of Directors the Internet Corporation for Assigned 

Names and Numbers (ICANN), approved the multistakeholder community's 

proposal for transitioning oversight of the Internet's addressing system from 

the US government to the Internet multistakeholder community. 

• The proposal was delivered to NTIA; it comprises two related plans: 

o The first plan specifies how the three communities of the Internet 

Assigned Numbers Authority (lANA) will interoperate with ICANN. 

o The second plan includes an extensive set of reforms to ICANN's 

governance structure to enhance the organization's accountability to 

the Internet multistakeholder community. 

Intel has been deeply engaged in the development of the overall transition 

plan and, in our view, it meets the criteria outlined by NTIA in 2014. 

• The plan translates principles upon which everyone agrees- a global, open, 

interoperable, stable and trustworthy Internet- into an actionable transition 

plan that meets the ~ommunities' needs. We look forward to the NTIA's and 

Congress' review of the proposal and we are eager to begin implementation 

to complete the transition. 

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WRITTEN TESTIMONY 

Good morning Chairman Walden, Ranking Member Pallone and 

members of the Committee. Thank you for the opportunity to testify today. My 

name is Audrey Plonk. I am Intel's Director of Global Cybersecurity and Internet 

Governance Policy, and I am pleased to address the Committee on the 

important issue before you: the transition of the Internet Assigned Numbers 

Authority (lANA) contract from the U.S. government to the global 

multistakeholder community. ilntel fully supports Congress's commitment to 

multistakeholder Internet governance. Part of that commitment has been to 

respect and abide by the work of the three constituent multistakeholder 

communities in developing the lANA transition proposal. It is Intel's belief that 

the proposal meets the requirements articulated by the NTIA in 2014. 

Background 

First, I would like to provide some background on my experience and 

Intel's commitment to a global, open, interoperable, trustworthy and stable 

Internet. As the Director of Global Cybersecurity and Internet Governance 

policy, I lead a global team of policy experts focused on Internet policy issues 

like governance, cybersecurity, and privacy. Our work is integrated with 

business units across Intel that create many forms of technology: (PCs, laptops, 

3 
77 


tablets, phones, servers, network equipment, Internet of things sensors, 

software, to name just a few examples). 

Prior to joining Intel in 2008, I led the Organisation for Economic Cooperation and Development's (OECD) security policy work on critical 

information infrastructure protection and mal ware. Before that, I worked with 

the U.S. Department of Homeland Security's National Cyber Security Division on 

international security policy issues. 

Personal computing has entered a new era. Instead of relying on a single 

device, we are surrounded by many devices at home and at work-laptops, a 

family computer, smartphones, tablets, TVs-they all help us stay connected 

and be more productive. 

As a world leader in computing innovation, Intel sees technology as more 

than just a practical tool. We design and build the essential technologies 

foundational to the world's interconnected computing devices. Connectivity to 

a global, open, interoperable, trustworthy and stable Internet is critical to 

realizing the promises of this new computing era. And a successful 

multistakeholder Internet governance system- including the effective and 

timely transition of the lANA functions contract to the Internet multistakeholder 

community and restructuring the Root Zone Management contract- is critical to 

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78 


provide the stability the market needs to continue investing in the Internet and 

the American technology sector. 

Current Status of the lANA Transition 

Last week, the Board of Directors of ICANN approved the 

multistakeholder community's proposal for transitioning oversight of the 

Internet's addressing system from the US government to the Internet 

multistakeholder community. The Board sent the proposal to NTIA for their 

review, analysis and approval. These actions followed approvals from five of 

ICANN's six chartering organizations, and no objection from the sixth -the 

Government Advisory Committee, or GAC. The bottoms-up process used to 

create the proposals is itself testimony to the success of the multi-stakeholder 

model. As Assistant Secretary Strickling has pointed out, "Stakeholders spent 

more than 26,000 working hours on the proposal, exchanged more than 33,000 

messages on mailing lists, and held more than 600 meetings and calls." I want 

to congratulate the community for their tireless effort in developing this 

proposal. I 

The proposal comprises of two related plans. The first plan describes 

how the three constituent communities of the Internet Assigned Numbers 

Authority (lANA)- Names, Numbers and Protocols- will interoperate with 

ICANN. The second plan includes an extensive set of reforms to ICANN's 

governance structure to enhance the organization's accountability to the 

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79 


Internet multistakeholder community. Intel has been deeply engaged in the 

development of the overall transition plan and, in our view, it meets the criteria 

outlined by NTIA in their announcement in 2014. 

Intel's views on the transition 

I testified before this committee last summer on "Stakeholder 

Perspectives on the lANA Transition". In my testimony, I described how Intel's 

business plan assumes that the Internet will continue to grow at rates similar to 

those experienced the over past fifteen years. This growth will make it possible 

to accommodate the Internet of Things, wearable computing, natural-language 

recognition, nanotechnology, quantum computing, and virtual reality. 

Intel's views on the transition are simple- we support it and we believe it meets 

the conditions outlined by NTIA in 2014 for the following reasons: 

1. The proposal has broad community support as evidenced by the 

approval of multistakeholder community. 

2. The proposal supports and enhances the multistakeholder model in 

several important ways: 

a. It removes a single government from any disproportionate role in 

oversight. 

b. It creates mechanisms to prevent capture by any single group of 

stakeholders. 

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80 


c. It creates additional mechanisms for the community to engage in 

Internet governance. 

3. The proposal meets the expectations of the constituents of the lANA 

services as evidenced by the relationship documents between the three 

lANA communities and ICANN and through their establishment of 

oversight mechanisms to ensure performance levels. 

4. The proposal maintains security, stability, and resilience of the Internet's 

Domain Name System in numerous ways: 

a. First, very little, is changing from a technical perspective- it will be 

business as usual. 

b. The legal structure of "sole designator" was chosen precisely to 

support stability of the organization while also empowering the 

community. 

c. A separate organization knows as the Post Transition lANA (PTI) is 

being established to maintain the Names registry but will also be 

contracted by ICANN to maintain Numbers and Protocols. The PTI 

can be separated from ICANN. 

d. Numerous committees will be established to monitor performance 

of the lANA during implementation and after the transition is 

complete. 

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81 


e. A parallel testing process for the root zone is scheduled to begin 

in April. This testing process will ensure stability through the 

changes to the root zone administration process. 

5. It maintains the openness of the Internet, keeping the fundamentals of 

open standards, open communications, and multistakeholder 

governance. 

6. The replacement for NTIA is not another governmental entity. 

We have been deeply engaged in the process and will continue to engage 

throughout the implementation phase until the transition is complete. 

Elements of the transition 

There are three components of the transition that must be completed 

together for a successful transition to occur: restructuring of the lANA contracts; 

implementation of accountability measures for ICANN; and a new contract for 

management of the Internet's root zone. 

The lANA Contract 

Following ICANN's 54th meeting in Dublin last year, the lANA Stewardship 

Coordination Group (ICG) submitted their proposal for transition of the lANA 

contract from an agreement between NTIA and ICANN to a set of agreements 

between ICANN and its the three lANA constituent communities- Names, 

Numbers and Protocols. Through the multistakeholder governance process, 

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82 


each of those three communities developed a transition plan and relationship 

documents (e.g., service level agreements (SLAs) or memorandums of 

understanding (MOUs)) that will govern the functioning of their lANA registries 

once executed. In each case, ICANN will remain the lANA Functions Operator 

(IFO) for the registry. 

Names 

The Names community will form a new, separate legal entity, PostTransition lANA (PTI), as an affiliate that will be a "wholly owned 

subsidiary" of ICANN and will become the lANA Functions Operator for 

names, under contract with ICANN; create a Customer Standing 

Committee (CSC) responsible for monitoring the operator's performance 

according to the contractual requirements and service level expectations; 

and establish a multistakeholder lANA Function Review process (IFR) to 

conduct reviews of the performance of the naming functions. 

Numbers 

The numbers community will: continue to contract with ICANN as the 

lANA Functions Operator for number resources; execute a contractual 

Service Level Agreement (SLA) between the Regional Internet Registries 

(RIRs) and the lANA Numbering Services Operator; and establish a 

Review Committee (RC) comprising community representatives from 

9 
83 


each region to advise the RIRs on the lANA Functions Operator's 

performance and adherence to specified service levels. 

Protocols 

The Protocols community will continue to rely on the system of 

agreements, policies, and oversight mechanisms created by the Internet 

Engineering Task Force (lET F), ICANN, and the Internet Architecture 

Board (lAB) for the provision of the protocols parameters-related lANA 

functions. 

The execution of these agreements cannot be completed until the 

proposed transition Jhas reviewed by NTIA and Congress and final approval 

from the US government has been received. 

ICANN Accountability 

The main objectives of the ICANN Accountability proposal are to provide 

safeguards to maintain the security, stability, and resiliency of the Internet's 

Domain Name System (DNS), and to develop a corporate governance structure 

that would vest power in the global multi-stakeholder community (hereinafter 

referred to as "the Community") to replace the stewardship of the NTIA. The 

proposal does this several ways: 

First, the Community will be granted a suite of powers including: 

1. the ability to reject budgets and changes to ICANN's standard bylaws; 

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84 


2. the ability to initiate a binding Independent Review Process; and, 

3. the ability to remove individual board directors or the entire board. 

In order for the Community to enforce these rights, a legal entity will be 

created and given the role of "sole designator" that will have statutory rights 

under California law to appoint and remove board members. The sole 

designator will be made up of the individualiCANN communities that choose to 

participate as "Decisional Participants". The proposal anticipates five Decisional 

Participants; all of ICANN's Supporting Organizations (GNSO, CCNSO, ASO) and 

the ALAC and GAC (with an important caveat called the "carve out," which I'll 

discuss later). The Security and Stability Advisory Council and the Root Server 

System Advisory Committee (RSSAC) decided not to participate as "decisional 

participants". 

Secondly, there will be improvements to ICANN's Independent Review 

Process, to broaden its scope, improve consistency of outcomes, and ensure 

that ICANN's board acts within its scope, and acts consistently with its bylaws 

and articles of incorporation. 

Finally, ICANN's bylaws, in addition to being modified to enact the above 

changes, will be amended to incorporate the Affirmation of Commitments, and 

a revised Mission Statement that "clarifies but does not change ICANN's historic 

mission" and limit its scope. 

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85 


The proposal creates a set of check and balances on the Board and 

Community to ensure that ICANN cannot be subject to capture of any single or 

group of constituents. As mentioned above, all the SOs and ACs can participate 

in ICANN as they historically have, however the new corporate structure also 

allows them to be Decisional Participants in the sole designator and exercise 

new powers over the Board. It is important to highlight the the role of the GAC 

in this new structure. In order maintain the multi-stakeholder model, the GAC, 

as an important stakeholder, needed to be able to participate in ICANN, 

however it was also requirement of the NTIA (and desire of many other 

participants like ourselves) that Governments not disproportionately increase 

their influence over ICANN. As a result, the discussions concerning the role of 

the GAC were difficult. Some participants strongly opposed letting the GAC 

participate in a decisional role at all, while some members of the GAC strongly 

opposed any constraints whatsoever on the GAC's ability to take part in ICANN 

deliberations. We believe the results of the discussions, in the final proposal, 

represent a carefully crafted outcome that, while not giving everyone exactly 

what they want, addresses that main concerns of all parties. There are three 

main elements: 

1. For the Board to give full consideration to GAC advice, that advice must have 

been arrived at in the GAC with full consensus - no objection. 

2. The Board must have a 60% majority, to reject consensus GAC advice. 

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86 


3. In any Community proceeding against the Board that involves GAC advice, 

the GAC is recused from participating as a Decisional Partner. 

We believe this package strikes the right balance of including governments 

in a true multi-stakeholder community, while not giving them increased 

influence over ICANNs decisions. 

The Root Zone 

The Internet's Root Zone is the top of the DNS hierarchy. Currently the 

management of the Internet's root includes three entities: the Root Zone 

Administrator (RZA)- currently the NTIA and the Root Zone Maintainer (RZM)-

currently Verisign and ICANN. The transition plan eliminates the role of the RZA. 

The current plan is for ICANN and Verisign to establish a direct contractual 

relationship, disintermediating NTIA, as the current RZA, from the process. The 

transition plan requires a public review period in advance of execution of a new 

RZM contract. 

Implementation and timeframe 

The current lANA contract between ICANN and NTIA expires September 

30th. While last week's milestones are significant, we are not finished yet. The 

NTIA must review the proposal to ensure it meets their criteria. New 

agreements between ICANN and the communities must be executed and a new 

contract for the management of the Internet's Root Zone must be developed, 

vetted by the community, and executed. The Cross-Community Working Group 

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87 


responsible for developing the accountability measures must immediately 

begin drafting changes to ICANN's bylaws so that the measures can be 

implemented. And, Congress must be given an opportunity to review the 

proposal. These timelines are complex and overlapping. 

• March 11 -June 11: NTIA assesses transition plan 

• April15: Draft revisions to ICANN bylaws released 

• April 15- May 15: Public Comment on ICANN bylaw revisions 

• Mid- April: Root Zone testing begins 

• April- May Public review period on the RZM Contract* 

May 31: ICANN Board approves draft bylaw revisions 

• June 15: NTIA submits plan to Congress for review 

• June 16: Congressional review begins 

• August- September New agreements are executed 

• October 1 

o Relationship agreements for the lANA including 

establishment of the PTI 

o New RZM Contract 

Transition complete 

It is unquestionable that this timeline is tight. But this is a remarkable 

community of people. I am confident that the community behind the incredible 

• Exact timing TBC 

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88 


work to-date will succeed in completing the transition and moving us fully into 

21'1 century Internet governance. 

Conclusion 

Throughout the transition process there has been little disagreement 

about what kind of Internet we want in the future. The challenge has been the 

translation of those principles- which describe a global, open, interoperable, 

stable and trustworthy Internet- into an actionable transition plan that meets 

the constituent multistakeholder communities' needs. Fortunately, we have 

succeeded in developing the plan. Now we must implement it fully to complete 

the transition. 

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89 

Mr. WALDEN. Thank you very much for your work and your comments. We go to Mr. Matthew Shears, representative and Director, 

Global Internet Policy and Human Rights Project. Mr. Shears, 

thank you for being here this morning. I look forward to your comments. 

STATEMENT OF MATTHEW SHEARS 

Mr. SHEARS. Thank you, Chairman Walden, Ranking Member 

Eshoo, members of the subcommittee. It is a pleasure to be here. 

My name is Matthew Shears. I am the director of CDT’s Global 

Internet Policy and Human Rights Project. CDT has been fully and 

deeply involved in the work of the IANA function transition. We 

have participated in the CWG stewardship working group and also 

in the CCWG accountability working group. We have also had the 

pleasure of submitting comment and testimony to this subcommittee last year. And we very much appreciate the opportunity 

to be here again. 

Last Thursday in Marrakesh, the Internet community forwarded 

to NTIA the IANA transition plan. This was a significant achievement. It did so following the global Internet community’s approval 

of a set of recommendations designed to ensure the enhanced accountability of ICANN post transition. This package, the IANA 

transition and the recommendations for enhancing ICANN’s accountability, is quite simply a remarkable achievement for the 

multistakeholder community. 

Of course, the work on IANA’s stewardship and ICANN accountability was anything but simple. Replacing the oversight role of 

NTIA and changing the governance structure of an organization as 

unique as ICANN has been complex and, at times, I must admit, 

quite daunting. Yet, the multistakeholder community has risen to 

the challenge. That means all part parts to that community, businesses, governments, the technical communities, civil society, academia, and individual users have risen to this challenge. 

So has the global multistakeholder community met NTIA’s all 

important criteria? And now you will hear some things that have 

been said by other witnesses, so it is good to hear that we are echoing the same things on the panel. In many ways, the IANA transition plan has been a proving ground for multistakeholders approaches to Internet governance. Critics tend to dismiss such approaches as difficult, dominated by certain interests, unrepresentative of the larger community. Multistakeholder processes have been 

known to fail. But these two multistakeholder processes, the IANA 

transition proposal and developing recommendations to enhance 

ICANN’s accountability, have delivered thoughtful and robust proposals. 

Were there difficult moments? Yes, numerous. But participants 

remained committed to working through them. Were there times 

when the process seemed to bog down and the resolve seemed to 

waiver? Absolutely. But these were overcome. This 2-year process 

has delivered two proposals that are, I think it is fair to say, the 

most successful expression of multistakeholder approaches to Internet governance yet. As advocates for this approach to Internet policymaking, we need strong examples such as these to point to. The 

successful delivery of the IANA transition accountability recVerDate Mar 15 2010 12:54 Mar 27, 2017 Jkt 037690 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 C:\USERS\WLAUFERT\DESKTOP\114X128PRIVATIZINGIANAXPDFMADE WAYNE
90 

ommendations should encourage stakeholders to pursue multistakeholder approaches to policymaking with renewed interest and 

commitment. 

The two working groups involved have also demonstrated that 

open, transparent, and inclusive processes work. These characteristics are essential to ensuring that the openness of the Internet is 

maintained. 

One significant challenge was how to empower the various parts 

of the community while maintaining the balance of power among 

them. To a large degree, the community succeeded. But, of course, 

not everyone was happy. Some governments wanted more say. 

Other parts of the community thought that governments could end 

up having too much power. Differences of opinion are inevitable in 

these kinds of processes. What was important is that the community has delivered a transition plan that does not replace the role 

of NTIA with a government-led or intergovernmental solution. In 

fact, it is far from it. The community has delivered a transition 

plan that empowers the whole of the multistakeholder community 

which has been the goal of the process from the very beginning. 

And last Thursday, no stakeholder and no parts of the community 

objected to delivering the IANA transition plan to NTIA. And that 

says a lot right there. 

The guidance for the transition must not imperil the security, 

stability, and resilience of the Internet has also been foremost in 

the community’s mind. The IANA plan emphasizes continuity of operations by having ICANN be the IANA functions operator post 

transition. At the same time, the plan provides mechanisms for the 

community and particularly the global customers and partners of 

the IANA functions to ensure that ICANN meets agreed performance targets. Were ICANN to fail though to meet those targets, 

then the ultimate sanction available to the community will be to 

change the IANA functions operator. In other words, to seek an alternative to ICANN to undertake essential DNS-related administrative tasks. 

This same commitment to the security, stability, and resiliency 

of the Internet guided the ICANN accountability work. The new 

limited powers provided to the community ensure that the community remains firmly in control when it comes to ICANN’s governance. From rejecting strategic plans and budgets to, in the worst 

case scenario, of board overreach, removing and replacing the entire ICANN board. These accountability powers are an effective 

way of ensuring that the stability and continuity of the Internet remain front and center in the ICANN post transition. 

There is still much work to be done. Close attention will have to 

be paid by the community to drafting the bylaws. Implementation 

of the post-transition IANA will need to be carefully monitored and 

implementation of the enhancements to the independent review 

process, among others. And there will be additional accountabilityrelated work that will continue beyond the transition in areas such 

as human rights, community accountability, and ICANN transparency. 

CDT believes that NTIA’s criteria have been met and that the 

community’s work on the IANA stewardship and ICANN accountability paves the way for the multistakeholder community to take 

91 

on the mantle of stewardship that the United States Government 

currently assumes. 

We would like to thank the subcommittee for this opportunity to 

discuss the IANA transition, the central role that multistakeholder 

approaches have played in the process so far, and the importance 

of the transition to broader global Internet governance. Thank you. 

[The prepared statement of Mr. Shears follows:] 

92 


CENTER FOR 

DEMOCRACY 

& TECHNOLOGY 

Testimony by Matthew Shears, Director of Global Internet Policy and Human Rights, Center 

for Democracy & Technology, before the U.S. House of Representatives Committee on 

Energy and Commerce, Subcommittee on Communications & Technology on "Privatizing the 

Internet Assigned Numbers Authority" 

March 17, 2016 

Chairman, Ranking Member, Members of the Subcommittee, thank you for the opportunity 

to testify today. 

CDT has been deeply involved in the Internet Assigned Numbers Authority transition since 

the announcement by the National Telecommunications and Information Administration 

two years ago. CDT has actively participated in the working groups on lANA Stewardship 

and ICANN Accountability and had the pleasure of speaking to this subcommittee at its 

hearing last May on "Stakeholder Perspectives on the lANA Transition". CDT has also been 

fully engaged in a range of international Internet governance discussions and processes 

including the World Summit on the Information Society review that culminated at the UN 

General Assembly this past December. 

Last Thursday in Marrakech the Internet community forwarded the lANA transition plan to 

the NTIA. It did so following the global Internet community's approval of a set of 

recommendations designed to ensure the enhanced accountability of ICANN post-transition. 

This package, the lANA transition plan and the recommendations for enhancing ICANN's 

accountability post transition, is, quite simply, a remarkable achievement by the 

multistakeholder community. 

Of course the work on lANA stewardship and ICANN accountability was anything but simple. 

Replacing the oversight role of the NTIA is not a simple matter, nor is changing the 

governance structure of any organization, let alone one as unique as ICANN. Yet the global 

multistakeholder community- comprising businesses, governments, the technical 

community, civil society, academia, and individual users- rose to the challenge. Together, 

the lANA transition plan and the accountability enhancements allow for the United States 

1 
93 


government to entrust the global multistakeholder community with the lANA functions and 

the stewardship of the Domain Name System. 

So, how did we- the global multistakeholder community- do? How does the lANA 

transition plan meet the NTIA's important criteria: 

• Support and enhance the multistakeholder model (including not accepting a 

proposal that replaces the NTIA role with a government-led or an intergovernmental organization solution) 

Maintain the security, stability, and resiliency of the Internet DNS; 

Meet the needs and expectation of the global customers and partners of the lANA 

services; and, 

Maintain the openness of the Internet. 

In many ways the lANA transition plan has been a proving ground for the multistakeholder 

approaches to Internet governance. Critics tend to dismiss multistakeholder approaches as 

difficult, dominated by certain interests, unreflective of the broader global Internet 

community, and often usurped by particular parts of the community that may wield greater 

clout than others. Multistakeholder processes have been known to fail. But these two 

multistakeholder processes- developing the lANA transition proposal and developing 

recommendations to enhance !ANN's accountability- have delivered thoughtful and robust 

proposals. 

Were there difficult moments during these processes? Yes, numerous, but participants 

remained committed to working through them. Were there times when the process 

seemed to bog down, when resolve seemed to waver? Yes, but these were overcome. 

When the community came together last week in Marrakech to endorse the ICANN 

accountability recommendations- thereby enabling the overall lANA transition plan to be 

delivered to NTIA- there was a very real sense of achievement. There was also a tangible 

sense of pride that an incredibly diverse community from across the globe came together to 

facilitate the transition of the US government's stewardship role in the Domain Name 

System. 

This two-year process has delivered two proposals that are -I think it is fair to say- the 

most successful expression of multistakeholder approaches to Internet governance yet. The 

community has proven that it can work together to address highly complex challenges. As 

advocates for this approach to Internet policy making, we need strong examples such as 

these to point to. The successful delivery of the lANA and accountability proposals should 

encourage stakeholders both in the Internet space and elsewhere to pursue 

multistakeholder approaches to policy-making with renewed interest and commitment. The 

two Working Groups involved have also demonstrated that open, transparent, and inclusive 

processes work; these characteristics are essential to ensuring that the openness of the 

Internet is maintained. 

2 
94 


One of the biggest challenges in enhancing ICANN's accountability was finding ways to 

empower the ICANN community- its Supporting Organizations and Advisory Committeesthrough increased oversight of ICANN processes and governance. Doing so turned out to 

be, in many ways, more complicated than developing the lANA transition proposal. One of 

the central considerations was how to empower the various parts of the community while 

maintaining the balance of power among them. To a large degree, the community 

succeeded, but of course not everyone was happy. Some governments wanted more of a 

say. Other parts of the community thought that governments could end up having too 

much power. These differences of opinion are inevitable in such processes. What is 

important is that the community has delivered a transition plan that does not replace the 

role of the NTIA with a government-led or intergovernmental solution. Far from it: the 

community has delivered a transition plan that empowers the whole multistakeholder 

community, which has been the goal of the process from the very beginning. And last 

Thursday, no stakeholder and no part of the community objected to the delivering the lANA 

transition plan to NTIA. 

The guidance that the transition must not imperil the security, stability and resiliency of the 

Internet has been foremost in our minds. The lANA plan emphasizes continuity of 

operations by having ICANN continue to be the lANA functions operator post-transition. At 

the same time, the plan provides mechanisms for the community, and particularly the global 

customers and partners of the lANA functions, to ensure ICANN's actions as the lANA 

functions operator are carried out appropriately and meet agreed performance targets. 

Were ICANN to fail to meet these targets, then the ultimate sanction available to the 

community would be to change the lANA functions operator- in other words, to seek an 

alternative to ICANN to undertake essential DNS-related administrative tasks. 

This same commitment to the security, stability, and resiliency of the Internet guided the 

ICANN accountability work. The new, limited powers provided to the community are 

essentially powers that the community hopes to never have to exercise. They are powers 

that ensure that the community remains firmly in control when it comes to ICANN's 

governance. From rejecting strategic plans and budgets to, in the worst case of boardoverreach, removing and replacing the entire ICANN Board, these accountability powers are 

an effective way of ensuring that the security, stability, and resiliency of the Internet remain 

front and centre at ICANN post-transition. 

There is, however, much work still to be done. Close attention will have to be paid by the 

community to the drafting of bylaws, implementation of the mechanisms and processes for 

the post-transition lANA, and implementation of the enhancements to the Independent 

Review Process, among others. And, additional accountability-related work will continue 

beyond the transition in areas such as human rights, community accountability and ICANN 

transparency, among others. 

So at the end of the day what does this mean? For COT it means NTIA's criteria have been 

met. It means that the lANA stewardship and ICANN accountability Working Groups have 

paved the way for the multistakeholder community to take on the mantle of stewardship 

that United States Government currently assumes. Delivering the lANA transition plan to 

NTIA is an important step in this process and the community can rightfully celebrate that 

3 
95 


achievement. COT will continue to be fully involved and we would like to thank the 

subcommittee for the opportunity to discuss the lANA transition, the central role that 

multistakeholder approaches have played in the process so far and the importance of the 

transition to broader global Internet governance. 

4 
96 

Mr. WALDEN. Thank you for your testimony once again before 

our subcommittee. 

We will now go to the Honorable David A. Gross, former U.S. Coordinator for International Communications and Information Policy, and partner, Wiley Rein. 

Mr. Gross, Ambassador, good to have you back. Thank you. 

STATEMENT OF DAVID A. GROSS 

Mr. GROSS. Thank you very much, Mr. Chairman, ranking member, members of the subcommittee. My name is David Gross. And 

I have the honor of appearing before you today on behalf of the 

Internet Governance Coalition. I respectfully ask that my written 

statement be included in the record. 

Mr. WALDEN. Without objection. 

Mr. GROSS. As you are well aware, 2 years ago, on behalf of the 

American people, NTIA announced its willingness to transition its 

traditionally based role regarding IANA functions and ICANN to 

the broader Internet community if certain strict conditions were 

met. My fellow panelists, with their deep expertise, have been discussing many of those technical aspects of the NTIA requirements 

and how they relate to the Marrakesh agreements. 

I would like to focus on the requirement that is of paramount importance. And that is the role of NTIA and the U.S. Government 

not be replaced now or in the future by a government, group of governments, or an intergovernmental entity. This issue is particularly 

close to my heart, as I had the great honor of leading the U.S. Government’s efforts for about 8 years when virtually every other country in the world questioned the legitimacy of the U.S. Government’s 

role regarding ICANN and sought to replace the role of our Government with the United Nations, the ITU, or some other governmental entity. 

Because of the hard work of many people, including the passage 

of unanimous resolutions by this House, we were able to defeat the 

efforts of those other governments. Without doubt, that was the 

correct decision for both the United States and for the world. Because of the additional hard work of many people, including tough 

negotiations during the past few months, the proposal that has 

been sent by the Internet community to NTIA for review, does 

what we, for many administrations, have sought to accomplish, to 

ensure that no other government or intergovernmental entity can 

replace the U.S. Government. This is a significant accomplishment. 

In my opinion, the role of governments regarding ICANN post 

transition will be even less than it is today. For example, formal 

GAC advice will require unanimity, so any country, including the 

United States, can keep the ICANN board from having to even formally consider governmental advice. Similarly, the scope of 

ICANN’s jurisdiction will be formally limited to its original purposes, so that there is no reasonable way for governments or others 

to expand ICANN’s activities beyond its technical remit. And because of the carve-out, the GAC cannot even be involved in the formal consideration of review of its advice. 

But let me be very clear: The remarkable success of this initiative does not mean that we can all rest assured that governments 

will not try to exercise control over important aspects of the InterVerDate Mar 15 2010 12:54 Mar 27, 2017 Jkt 037690 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 C:\USERS\WLAUFERT\DESKTOP\114X128PRIVATIZINGIANAXPDFMADE WAYNE
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net. As an initial matter, we all need to focus closely on the actual 

implementation of the Marrakesh agreements to ensure they are 

done correctly and completely. 

But just as importantly, I believe that, assuming these changes 

are made and ICANN no longer is viewed by governments as a 

place for them to try to exert control over Internet governance matters, those governments seeking such control will move from trying 

to use ICANN and its processes to look to other organizations and 

forums instead. 

The role of governments in Internet governance is not going 

away. I hope that the Internet community and this Congress will 

remain vigilant to ensure wherever those issues are raised, we are 

ready to act strongly and effectively to ensure that the Internet remains a global mechanism for people to work, to play, to learn, to 

innovate, to express themselves freely, and to make the world a 

better place for everyone regardless of where they live. Thank you. 

[The prepared statement of Mr. Gross follows:] 

98 


TESTIMONY OF AMB. DAVID A. GROSS 

BEFORE THE U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY 

MARCH 17,2016 

SUMMARY 

The Internet Governance Coalition is pleased to testifY on the important developments in 

the process to transition key Internet domain name functions to the global multistakeholder 

community, commenced by NTIA just over two years ago. Last week, the ICANN Board voted 

to approve a plan for transitioning control of the lANA functions to the multistakeholder 

community. This step, together with approval of the associated, new accountability processes, is 

an important milestone for the multistakeholder model ofinternet governance and for the 

Internet as a whole. Approval by the ICANN Board is the result of two years of hard work by 

many people and organizations, demonstrating that even complex and difficult Internet-related 

issues can be resolved successfully through a multistakeholder process. 

Our review of the proposals approved by the ICANN Board is rooted in the principles 

laid out by NTIA at the commencement of this process. Recognizing that the U.S. government 

must still make its careful assessment of the proposals, our independent conclusion is that the 

proposals approved by the ICANN Board meet the conditions set forth by NTIA, and that these 

proposals will be instrumental to ensuring the ongoing stability and reliability of the Internet as it 

continues to help the world's people economically, socially and culturally. The Internet 

Governance Coalition believes that the proposals approved by the ICANN Board in Marrakesh 

will be good for America, good for American business, good for the Internet, and good for the 

world. Looking ahead, it will be important for all stakeholders to stay engaged, both in the near 

term, as the finalization of revisions to ICANN's bylaws and other important implementation 

activities continue, and thereafter. 
99 


TESTIMONY OF AMB. DAVID A. GROSS 

BEFORE THE U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY 

MARCH 17,2016 

Chairman, Ranking Member, Members of the Subcommittee, good morning and thank 

you for the opportunity to testify before you today. 

My name is David A. Gross. Formerly, I had the great honor of serving in the 

Department of State as the United States Coordinator for International Communications and 

Information Policy from 2001 to 2009. During this time, I led the United States delegations to 

the preparatory meetings and I was the co-head of the United States delegations to both actual 

phases of the United Nations' World Summit on the Information Society (WSIS) in Geneva 

(2003) and Tunis (2005), which, among other things, focused on the role of governments 

regarding Internet governance and resulted in the creation of the Internet Governance Forum 

(IGF). Today I am appearing on behalf of the Internet Governance Coalition, an industry-led 

coalition with broad representation from the communications, Internet, and related industries, 

including AT&T, Inc., Cisco Systems, Inc., Comcast NBCUniversal, Facebook, GoDaddy, 

Google Inc., Juniper Networks Inc., Microsoft Corporation, Telef6nica, S.A., The Walt Disney 

Company, Time Warner Cable Inc., Twenty-First Century Fox Inc., and Verizon 

Communications Inc. 

I am pleased to appear again before this Subcommittee to testify on the important 

developments in the process to transition key Internet domain name functions to the global 

multistakeholder community, commenced by the National Telecommunications and Information 

Administration (NTIA) just over two years ago. NTIA's decision to initiate a process leading to 

the possible transition of the lANA functions contract to a multistakeholder entity is a critical 

step toward making the economic and societal benefits of the Internet available for everyone. 
100 


Last week, the ICANN Board voted to approve a robust plan for transitioning control of 

the lANA functions from the United States government to the multistakeholder community. 

This step, together with approval of the associated, new accountability processes, is an important 

milestone for the multistakeholder model oflnternet governance and for the Internet as a whole. 

This is an important and significant event. Approval by the ICANN Board is the result of two 

years of hard work by many people and organizations, demonstrating that even complex and 

difficult Internet-related issues can be resolved successfully through a multistakeholder process. 

The importance of the Internet economically to U.S. and global businesses, as well as 

socially and culturally to all the people of the world, cannot be overstated. It is essential that we 

preserve the stability and reliability of the Internet, both in terms of technical decision making 

and policy making. Changes in the processes of Internet governance-which have helped shape 

the historic growth of the Internet economy, and the immense benefits that it has brought-are of 

great interest and concern to the Internet Governance Coalition. That is why, although the 

Coalition itself has not been directly involved in the process of developing the stewardship 

transition and accountability proposals, some Coalition member companies have taken an active 

role and the Coalition has monitored the processes and has been diligent in its review of the 

outcomes. 

The Coalition believes that a thriving Internet depends on a governance structure that is 

open, transparent, and representative of all stakeholders. The current multistakeholder model for 

Internet governance has facilitated the historic Internet-driven economic, social, and political 

development of the past two decades. The decentralized structure of the Internet has enabled 

individuals to access information and services, to connect and to communicate, and to share 

ideas and knowledge globally. By offering new possibilities for entrepreneurial creativity, the 

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101 


Internet has become a powerful engine for unparalleled technological innovation, economic 

growth and the preservation and promotion of cultural diversity. 

United States government oversight of the lANA functions has long been an issue of 

concern to the global community. By allowing for the careful transition of the lANA to a 

bottom-up multistakeholder entity, the United States is simultaneously addressing these concerns 

and affirming its commitment to the multistakeholder model. After the transition, it is expected 

that the United States will continue to participate actively in the Government Advisory 

Committee, one of the important stakeholder constituencies in the multistakeholder model. By 

ensuring that the principles NTIA identified for the transition are met-which are critical 

conditions for this process to work successfully-the United States will also succeed in creating 

an environment to maintain the freedom, openness, security, and stability of the Internet we have 

all enjoyed since its inception. Of course, robust accountability and transparency mechanisms 

are necessary to ensure future stability in the absence ofNTIA's current role, and these 

additional mechanisms, contained in the new accountability proposal approved by the ICANN 

Board, must be in place prior to or simultaneous with the transition. 

Specifically, the Coalition has supported NT lA's commitment that the transitional 

proposal must: 

• Support and enhance the multistakeholder model; 

• Maintain the security, stability, and resiliency of the Internet DNS; 

• Meet the needs and expectation of the global customers and partners of the 

lANA services; and, 

• Maintain the openness of the Internet. 

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These principles, together with NTIA's critically important, explicit commitment not to 

accept any proposal that could replace its role with a government-led or an inter-governmental 

organization, are consistent with the Coalition's own policy principles, which have been the 

basis of its prior testimony before this Subcommittee and its advocacy before the United Nations, 

the International Telecommunication Union, and elsewhere. In these various fora, the Internet 

Governance Coalition has stressed that we all-governments, the private sector, civil society and 

others-must join together to ensure a safe, secure, open, interoperable, and global Internet as 

the underlying foundation for sustainable economic and social development. This means 

promoting policies that stimulate continued investment in, deployment of, and access to Internet 

networks and the industries and services that create demand for those networks. It also means 

continuing to support capacity building and assistance on implementation of network security 

best practices. 

Policies must support opening and maintaining international markets allowing the 

seamless flow oflegal digital services, applications, products and information. Any actions 

taken should foster innovation and investment across Internet networks, services, and other 

sectors of the Internet ecosystem, including ensuring both the enhancement of human rights and 

the protection of intellectual property. These goals are best advanced through strengthened rule 

of law, which governments can advance greatly by establishing even-handedness and 

predictability in decision-making. 

Finally, the Internet Governance Coalition believes in increased and appropriate 

transparency and openness in intergovernmental organizations and multistakeholder 

mechanisms, to ensure that all stakeholders can participate meaningfully in key Internet policy 

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103 


discussions. The quality of Internet governance decisions increases when diverse stakeholders 

choose to actively and consistently participate. 

Our review of the proposals approved by the ICANN Board in Marrakesh is rooted in the 

principles laid out by NTIA at the commencement of this process. Recognizing, of course, that 

the U.S. government must still make its careful assessment of the proposals, our independent 

conclusion is that the proposals approved by the ICANN Board meet the conditions set forth by 

NTIA, and that these proposals will be instrumental to ensuring the ongoing stability and 

reliability of the Internet as it continues to help the world's people economically, socially and 

culturally. 

We are comfortable, especially, because we see no increased probability of the lANA 

functions being controlled or coopted by foreign governments or intergovernmental 

organizations in the proposals. Indeed, while the U.S. government review of the transition 

proposal may justifiably take time, the new accountability mechanisms should be put into place 

promptly regardless of the timing of the overall transition. The multistakeholder discourse that 

took place regarding the accountability processes was important, regardless of the final timing or 

result of the stewardship transition. 

Ultimately, the Internet Governance Coalition believes that the proposals approved by the 

ICANN Board in Marrakesh will be good for America, good for American business, good for the 

Internet, and good for the world. Looking ahead, it will be important for all stakeholders to stay 

engaged, especially in the near term as the finalization of revisions to ICANN's bylaws 

continues. This process should not and does not conclude with the approval and implementation 

of the present stewardship transition plan and accountability mechanisms. Continuing 

improvements to these processes can be made, including with respect to increasing transparency 

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into ICANN's functions and interactions. Ongoing engagement by U.S. businesses and the U.S. 

government with ICANN, especially as it matures into "adulthood," is essential and evidences 

the significant value of the Internet and seamless flow ofinformation to the United States and the 

global economy. 

l would like to thank the Committee for allowing me, on behalf of the Internet 

Governance Coalition, to present our views on these matters of great importance for preserving 

the fundamental principles that have governed the Internet, and have greatly benefited not only 

America, but also the world. 

6 
105 

Mr. WALDEN. Thank you, Ambassador. Once again, thanks to all 

the witnesses. 

I would like to ask unanimous consent to submit the following 

documents for the record: A statement from the Heritage Foundation outlining remaining concerns, the IANA transition; a statement from the Internet Infrastructure Coalition supporting the 

transition of the IANA functions to the global multistakeholder 

community; and a paper from the International Center for Law and 

Economics on assuring accountable Internet governance. Without 

objection, those will be entered into the record. 

[The information appears at the conclusion of the hearing.] 

Mr. WALDEN. One of the questions I know that Heritage has 

asked is they don’t think there is enough time here. And so to the 

panel: The transition proposal is currently being reviewed by 

NTIA, but much work remains for a transition to actually occur. Do 

you all think it is realistic that all the work is accomplished before 

the existing contract expires at the end of September, why or why 

not? And do you believe an extension of the contract is necessary? 

And if you can be fairly brief on that because I have got a couple 

other questions I would like to get to if time permits. Mr. 

DelBianco. 

Mr. DELBIANCO. Thank you, Mr. Chairman. The answer is yes. 

We can do it. We have finished the hard work of a report. It has 

been cleared by all of the multistakeholder members. We now have 

to match bylaws to that report. We have got high-paid lawyers both 

for ICANN and for the community. And they need to come together 

roughly a week from now with a draft that we can review. If that 

is done, the only other step is to implement the set-up of certain 

corporations that I think Alissa can talk about and creating panels. 

We can do that in time to get this transition completed. 

Mr. WALDEN. All right. I don’t know of too many low-paid attorneys. But, anyway, go ahead. Dr. Cooper. 

Dr. COOPER. Yes, so I agree completely with what Mr. DelBianco 

said. We have sufficient time to complete this. The fundamentals 

are all there in the proposals. And all along this entire process, 

particularly from the ICG side, the group that I chair, we have 

driven people to meet tight deadlines. And in every instance, the 

community has done so. And so I expect that to happen in this case 

without any need for an extension. 

Mr. WALDEN. Ms. Wentworth, do you agree with that? 

Ms. WENTWORTH. Yes, we agree with that. We need to remain focused on the implementation but we think the community can do 

it. 

Mr. WALDEN. All right. Ms. Plonk? 

Ms. PLONK. I agree. 

Mr. WALDEN. All right. Mr. Shears? 

Mr. SHEARS. Yes. 

Mr. WALDEN. And Ambassador Gross? 

Mr. GROSS. I have every expectation that it should be done on 

time. We have testified before that it should happen no earlier than 

when it is ready to happen. But I have every expectation that it 

will be ready. 

Mr. WALDEN. You think we will get there? Then the contract 

does not need to be extended beyond September. OK. 

106 

Mr. DelBianco, I will go to you. And if you want to follow up on 

that, you can. 

Mr. DELBIANCO. Just, Mr. Chairman, a very tiny amount. I believe that Secretary Strickling has said on many occasions that 

come middle of August, if it is not implemented and the bylaws 

aren’t adopted, that NTIA would extend the contract. We do have 

a safety valve if things are not in place. 

Mr. WALDEN. Perfect. So back to you, Mr. DelBianco, at the April 

2014 hearing we had, we liked the idea of the stress test. We have 

talked about that this morning. How does the community’s proposal address the stress test where a majority of governments try 

to steer ICANNpolicies? How is that going to work? 

Mr. DELBIANCO. Thank you, Mr. Chairman. That was the infamous stress test 18. And governments were very upset at the solution the community came up with. We suggested that for GAC, the 

Government Advisory Committee, to enjoy its privileged advice to 

the board, that they would need to adopt their advice through 

broad support in the absence of a single formal objection. And this 

would mean that only advice that carries that special deference 

would have to be approved by all governments. 

The second thing we did was suggest that they had to attach rationale to their advice. And ICANN’s board, should it choose to reject that advice, would only have to enter into a conversation of trying to find a mutually acceptable solution, but they wouldn’t have 

to actually reach one. 

Finally, if the board itself lacked I guess the backbone to stand 

up to GAC advice, the community reserves the ability to challenge 

the board’s acceptance through an independent review that could 

block and undo bad advice that came from governments. 

Mr. WALDEN. All right. Ambassador Gross, if I could ask you a 

question. There was much debate in the lead up to ICANN 55 

about the so-called GAC carve-out. My understanding is that this 

means that when the GAC forces consideration via the ICANN 

board, of an issue through consensus advice the board, that it not 

be permitted to act as a participant in the community powers related to that advice. Is that correct? 

Mr. GROSS. That is accurate. And that is consistent with what 

Steve discussed as well. And I think that is an important consideration going forward. 

Mr. WALDEN. And so back to you, Mr. DelBianco, that means 

that either the GAC can exercise the privileged position it has always had at its disposal when the governments of the world are 

in agreement or it can be one of the votes in the empowered community but not both, correct? 

Mr. DELBIANCO. That is correct, Mr. Chairman. 

Mr. WALDEN. All right. So in practice this means that the governments or the world are prevented from having two bites at the 

apple. All right. Perfect. 

I know we have got other members that have questions. So I will 

yield back and recognize the gentlelady from California, Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman. Kudos to each one of you. 

I think today’s testimony is not only so well thought out, but I am 

very optimistic after listening to you. I mean, there is a common 

107 

theme that runs through the testimony that each one of you gave. 

And so thank you very much. 

My first question, based on listening very carefully to what you 

testified to, how airtight is our case? You know, there is an awful 

lot of talk today about backdoors in the intelligence community and 

the whole debate on encryption and all of that. But given the work 

that has been done, you have all expressed enormous confidence 

based on, again, the work that has been done. 

And I just want to make this observation too, I think what was 

embedded in your testimony is like holding a mirror up to our 

country because what we are all working toward, what you are 

working toward, have worked so hard to do, is to make sure that, 

that the Internet is a reflection of democracy in its full bloom. That 

is really what this is. 

So, number one, how airtight do you think our case is? Do you 

think that we are close to imperviousness? And if that can’t be 

achieved, then what is it that we need to be on the look out for? 

Whomever would like to start. 

Dr. COOPER. I can start—— 

Ms. ESHOO. I wasn’t going to ask this question. But after listening to you, I am departing from what I was going to ask. 

Dr. COOPER. To me, the best way to understand how airtight the 

case is is to look at the strength of the consensus and who was involved in this process. I think everyone in this room can appreciate 

how difficult it is to come to true consensus among parties with 

very diverse interests. And in the case of this proposal, it is not 

just a domestic issue, it is a global issue. So you have people from 

all different sectors, all different countries around the world. 

Ms. ESHOO. Well, the United States played a key role in the 

Paris summit conference. And if just one country had objected, the 

whole thing would have collapsed. So consensus, you are right, is 

essential. 

Dr. COOPER. Yes. But that is really the best demonstration of 

how good the proposal is is that you have people who truly come 

from very different walks of life, different places, different industries who have all gotten behind this and said we have looked at 

the details of this and we think it is the right path forward. And 

that also reflects an intense amount of scrutiny that the proposal 

has already enjoyed, multiple, multiple public comment periods, 

tens of thousands of email exchanges on mailing lists. There has 

been so much review of the—— 

Ms. ESHOO. In terms of the consensus, though, and the work that 

has been done and the, I described it as imperviousness, but where 

are the vulnerabilities? Do you see vulnerabilities? Or do you think 

we are rock solid and it is not, no one is going to be able to break 

the, you know, go down a path that is unwanted and disrespected? 

I guess I am being kind, in my description. 

Mr. SHEARS. I think it is a very interesting question. I think for 

those of us who have been involved in this process over the past 

2 years and in both working groups, what we have to be now is 

extremely vigilant so that we don’t have those types of occurrences 

happen. And between now and over the next couple of months in 

terms of the bylaws and the implementation, that is the time when 

108 

we need to be as a community still fully engaged. There is no stepping back from this right now. 

Ms. ESHOO. I just want to raise something that—I understand 

why there was language placed in the fiscal year 2016 Omnibus, 

it was a rider that you are all familiar with that stated that no 

funds could be used to relinquish NTIA’s responsibilities, et cetera, 

et cetera. Those are all tools that the Congress uses for very specific reasons. And they are what they are. And they are warning 

shots. And it is important to have, you know, send a message 

across the bow. But if that were to continue, given where we are 

now, another rider, what does that do? What message does that 

send to all of this consensus that you have spoken to? 

Ms. PLONK. It is a very good question. I think it sends a very 

negative message to the markets, to the international community, 

and I don’t just mean governments, but I mean the business community, that we weren’t serious about carrying forward our commitment to turn this over to the multistakeholder community. I 

think that is bad for investment. It is bad for business. 

It will incentivize other trade barriers that we see in the tech 

sector being raised in many countries. It will provide a rationale. 

And so we would be very concerned about the impacts of that rider 

continuing forward. 

Ms. ESHOO. Most helpful. Most helpful. 

Thank you to all of you. And bravo for the work that you have 

done. This has not been easy. It has been a tough slog. And we are 

just about there. And I think it has been worth the effort. 

But we wouldn’t be where we are right now were it not for all 

of you and others that have made this journey with us. So I thank 

you. I really respect your work. I thank you again. I yield back. 

Mr. LATTA [presiding]. Thank you very much. The gentlelady’s 

time has expired. And the Chair recognizes himself for 5 minutes. 

Mr. DelBianco, if I can ask you the fist question. Can you explain 

the position of the Governmental Advisory Committee as a 

decisional participant in the empowered community? The GAC 

stated it would participate as a decisional participant but under 

conditions to be determined internally. The purpose of the empowered community seems to be to increase accountability and transparency. But the GAC statement seems to be unclear. Does this undermine the work of the working group? 

Mr. DELBIANCO. Thank you, Mr. Chairman. 

The answer is no. ICANN, when it was established, delineated 

in its bylaws seven advisory committees and stakeholder organizations that composed and represented global Internet stakeholders. 

Governments or the Government Advisory Committee, known as 

the GAC, is one of those seven. The community proposal invites all 

seven to participate as multi equal stakeholders in this empowered 

community which only fires up when we need to consider a change 

to a fundamental bylaw or when there is a petition to object to an 

override, something that the board has done, or even to spill the 

board of directors. And it is only in those situations where that 

community has to come together. And each of the advisory committees, through its own methods, will make its decision whether to 

proceed to spill the board, for instance, or to oppose it. We require 

support. And it takes more than one of them to object to that. 

109 

So that is what is meant by the word I guess decisional and that 

we are recognizing that stakeholders around the world actually do 

include governments. They represent people in the public policy 

that they are chartered with managing. So it would not have been 

even tenable to say to the governments of the world you don’t count 

as a stakeholder in the multistakeholder environment. Imagine 

what that would do to the problems we have at the United Nations 

and the ITU today with an ICANN that is largely led by the private sector. 

Mr. LATTA. Thank you. 

Dr. Cooper, you described in your testimony that proposals, a 

recommendation to form post transition IANA PTI to operate the 

IANA naming functions. Can you explain how this new entity will 

help achieve accountability? And what will happen with the naming functions if the contract with the PTI is terminated through the 

IANA function review? 

Dr. COOPER. Sure. Thank you for the question. So the proposal 

recommends the creation, as you say, of an entity called the posttransition IANA which would be an affiliate of ICANN. In the forprofit world, an affiliate is more often known as a subsidiary. But 

this is a not-for-profit. And the purpose of the post-transition IANA 

is really to create a legal separation between the entity that is performing the IANA functions, not just the naming functions, but 

also the ones related to numbers and protocol parameters, to create 

a legal separation between the not-for-profit corporation ICANN 

and the affiliate performing these functions. What this allows is 

that in the case of the names community, which is grounded within 

ICANN, if it comes to pass that the community is so dissatisfied 

with the performance of the IANA functions, they would be able to 

separate from the PTI, essentially take their business elsewhere. 

And this is actually a feature of all three components of the proposal. 

Each of the three communities, numbers, names, and protocol parameters, has established an ability to create an agreement with 

the IANA functions operator. And if performance becomes so degraded that they are unsatisfied, they can take their business elsewhere. It is just like a customer service provider relationship. And 

so this creates a significant amount of accountability because if the 

PTI wants to retain the ability to continue performing the IANA 

functions, they need to meet the performance requirements that 

the communities have established for them. And in each case, the 

communities either already have or in the process of establishing 

service-level agreements with ICANN and the PTI to establish 

what performance they expect from IANA. 

So that is how it enhances accountability by allowing, the communities to decide whether the performance of IANA is sufficient. 

Mr. LATTA. Thank you. And in the interest of time, I am going 

to also yield back the balance of my time, so we can get, hopefully, 

all the members’ questions in. 

The next questions will be from the gentleman from Illinois for 

5 minutes. 

Mr. SHIMKUS. Thank you, Mr. Chairman. Dr. Cooper, where 

would they go? I mean, you are addressing a competitive, you 

110 

know, obviously, a chance to get another service rendered. But 

where would they go? 

Dr. COOPER. A very good question. So actually the first thing to 

point out is that all of the communities in the course of this process 

have expressed their extreme satisfaction with the performance 

that ICANN has brought. 

Mr. SHIMKUS. Right. And I got that. 

Dr. COOPER. So the likelihood of this at present is hard to imagine. But I think if you look at what the functions are, they are essentially clerical functions. They are maintaining values in databases on Web sites. There is not a lot of rocket science going on 

here. And so it is conceivable that any kind of entity that knows 

how to maintain values on Web sites would be capable of performing these functions. But, as I said, the communities have expressed their satisfaction. And, thus, as far as I know, there is no 

plans in the works—— 

Mr. SHIMKUS. I was just interested in the weaving of the story 

there. And I was just, I didn’t know if there was a competing alternative option immediately available. But you would say soon there 

could be, someone could step up and do that? 

Dr. COOPER. Right. And it is literally a team of 13 people 

who—— 

Mr. SHIMKUS. I got it. 

Dr. COOPER [continuing]. Perform secretarial functions. You 

could imagine other organizations would be able to carry out the 

task. 

Mr. SHIMKUS. Thank you. We are in a much better place than 

we were, obviously, 2 years ago. We appreciate your help and support. And I think had it not been for the Senate not doing their 

job, which I feel they should, we would have a little more clarity 

and a little more strength. But we are where we are. And we appreciate the testimony. 

But we have got to continue to do our oversight. And I think 

even without a law being passed, there will continue to be oversight by, obviously, us and other interested parties until the whole 

relinquishing of the authority occurs. So one concern still out there 

is the transparency of ICANN’s interaction with government officials. You are already ready for this. So, Mr. DelBianco, do you 

want to address that? 

Mr. DELBIANCO. Congressman Shimkus, you weren’t here earlier 

when we not only thanked the committee for the DOTCOM Act, 

backing the community as you did, and telling ICANN they had to 

adopt our bylaws or the transition wouldn’t happen, but at the Argentina ICANN meeting last summer, a standing ovation for the 

U.S. Congress for backing the—— 

Mr. SHIMKUS. My primary just ended. So I guess it is OK to say 

that. But it may not be helpful. 

Mr. DELBIANCO. So you asked about transparency. I held up earlier the bumper sticker we are going to put on the back of the 

ICANN car, ‘‘How is my driving?’’ But, Congressman, that would 

only work if we can see what they are doing. In truth, ICANN’s 

management from time to time gets adventurous, outside of the 

guardrails we put up for that car, such as setting up and planning 

for the NETmundial Conference, something that was done from the 

111 

inside, top down. And we didn’t even know about it until months 

afterwards. 

So what we need is transparency about ICANN’s interactions 

with governments and intergovernmental agencies. And that is, in 

fact, locked into our proposal. That is one of the work stream 2, 

which is things that will occur after the transition, because we 

have the leverage to force them through if the board and management of ICANN didn’t want to take on new transparency measures. 

Mr. SHIMKUS. Yes. And I am glad you mentioned that. Because 

my follow-up was any other outstanding issues in work stream 2 

that we know of? 

Mr. DELBIANCO. Congressman, the other members of the panel 

would love to chime in on that. We have seven different streams 

in work stream 2. Transparency is one of them. We have one on 

human rights. We have a handful that deal with accountability of 

the actual stakeholder organizations to the people that we represent. So we have a lot of work to do. But we have scored, through 

your help, the leverage to hold ICANN’s board and management to 

whatever improvements we come up with in work stream 2. 

Mr. SHIMKUS. Great. Thank you. And I am just going to end for 

other colleagues who seek time. 

But, Ambassador Gross, just to finish up, you are obviously on 

the panel here, you probably were, as many of us were, very skeptical. It sounds like you are not as skeptical and you think this all 

can happen as intended. But you probably agree that there still 

needs to be oversight and, you know, watching of the process. 

Would that be fair to say? 

Mr. GROSS. That would be more than fair to say. In fact, I would 

go slightly further. That is, as I think everyone has testified today, 

implementation is key. We have the framework. There is still a lot 

of hard work to be done. But the other piece and I think the piece 

that has animated you, and others, here for many years, is to 

watch these issues as they go away from ICANN and they seek to 

find home on Internet governance by governments trying to be active in this area in other organizations. The threat is still there. 

The need for involvement and oversight will be as strong as ever. 

Mr. SHIMKUS. And thank you all. Great work. And I appreciate 

us being involved together with this. I yield back. 

Mr. LATTA. Thank you very much. The gentleman yields back. 

And the Chair now recognizes for 5 minutes the gentleman from 

Kentucky. 

Mr. GUTHRIE. Thank you very much. Thank you all for being 

here. We appreciate it. I am going to try to go quick too because 

of time. 

But, Ambassador Gross, it was addressed at the last hearing 

with NTIA and ICANN the importance of the U.S. keeping dot-mil 

and dot-gov for our Government’s exclusive, perpetual, and no-cost 

use. How can we ensure that happens within the timeline of the 

transition? 

Mr. GROSS. I think others will be able to address that issue as 

well. But I think basically the key here is the Government will continue to be involved, that those issues will remain there. And I 

think there is no doubt but we will be able to keep those issues. 

112 

Mr. GUTHRIE. And if you can elaborate on a more general 

timeline for the transition. And as you do that, if anybody else 

wants to add on to my question about dot-mil, dot-gov, I would appreciate that. 

Mr. GROSS. Sure. I will work backwards. The expectation, as we 

have all testified today, is that by September 30, which is the expiration of the current contract, that all the work should be done. 

There are a number of things that have to happen in between. 

Not only does this Congress have an opportunity to review what is 

going on and decide in its wisdom whether to act or not, we will 

have—and, of course, nothing happens until NTIA makes its independent determination about whether or not its criteria has been 

met. That process is now ongoing. And, importantly, as many people have indicated, there are a number of very important and complicated implementation pieces, including bylaw changes and drafting and the like, that need to be done before anything goes forward. 

Mr. GUTHRIE. All right. Anybody want to talk on the dot-mil, dotgov? 

Mr. DELBIANCO. Thank you, Congressman. I think that is an 

ideal question to put to NTIA’s administrator when, undoubtedly, 

this committee will be meeting with NTIA at the conclusion of their 

report sometime in early June. And they are doing interagency reviews. 

So you can bet that GSA and DOD and different agencies of the 

Government will want to secure a permanent lock on dot-mil and 

dot-gov. And that would be a great time to understand whether 

those documents have been produced to the satisfaction of the 

interagency review. 

Mr. GUTHRIE. All right. Thank you for that. And I have one more 

question. 

Ms. Plonk, you discussed in your testimony the root zone manager contract. When will this be developed? And what is the timeframe for implementation of testing in a new contract? 

Ms. PLONK. Thank you for the question. My understanding is 

that, as I said, there will be a parallel testing process that will 

begin in April. The ICG report requires a public review time for the 

contract when it is drafted. So sometime between April and June, 

there will be a 30-day public review. And then once the transition 

is approved and finalized and Congress has had their 30 legislative 

days, all the various contracts, including the root zone management contract, will be signed. That is my understanding. 

Mr. GUTHRIE. Thank you very much. And, Dr. Cooper, do you 

have any comments on the, anything you would like to add I guess? 

Dr. COOPER. Yes. One additional detail is that the ICG proposal 

does require some form of written agreement between the root zone 

maintainer and the IANA functions operator. And it is my understanding that that agreement is in development and will be made 

public on very short order. So all the ducks are in a row as far as 

completing the necessary written agreement. 

Mr. GUTHRIE. Thanks to you both. And thanks to you all. This 

is informative. I appreciate it. I yield back. 

Mr. LATTA. Thank you. The gentleman yields back. And the 

Chair now recognizes the gentleman from Ohio for 5 minutes. 

113 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Dr. Cooper, I have heard from folks in the accounting industry 

that they have had difficulty registering domain names for the 

worldwide CPA community. And we have heard a lot about the 

need for accountability and transparency throughout the development of the CCWG accountability proposal. 

Can you describe the process of developing the plans for the operational communities? Were stress tests used to ensure the criteria 

of NTIA were met? 

Dr. COOPER. Thank you for the question. And I am happy to describe the processes in the communities. I will say that, just to remember, there is two components of this proposal. I can speak to 

the operational plan. And others may want to chime in on the accountability plan. 

But as far as the operational plan goes, there are three communities of interest, for names, for numbers, and for protocol parameters. And each community was tasked with a request for proposals 

that came from the ICG. And we essentially requested not only a 

description, a thorough description, of what the existing oversight 

arrangements are for that community’s IANA functions, but also 

what they plan to make them be after the transition and why that 

community felt that the plan that they proposed would meet the 

NTIA criteria, provide a workable solution going forward for the 

IANA functions. 

So each of those communities developed its own essentially working group or task force to develop that plan. In each community, 

they had wide review of open participation from anyone who wanted to participate. And through that process, they honed their plan, 

sent them to the ICG. We did a review that included looking at 

whether the proposals individually created sufficient accountability 

mechanisms for IANA, met NTIA’s criteria. And then we looked at 

them together and said do these actually work together as a functional whole? 

So having received proposals from disparate interests, we wanted 

to make sure that together they would be cohesive, we had some 

back and forth with the communities to clarify certain things about 

the proposals, and to ensure that they actually would form a cohesive whole. 

In the end, we issued the entire proposal for public comment. 

And on the basis of those hundreds of comments received, had 

some further interaction with the communities, further refinements 

to the proposal, and eventually issued it as a complete plan. 

The one other thing I would just note in terms of difficulty with 

registering domain names, and without knowing the context, it is 

hard to speak to it, but it is critical to understand what is actually 

at issue here and what is not. The IANA functions deal strictly 

with the top level of the Internet infrastructure. So on the domain 

name side, that means names like dot-com and dot-gov and dotU.S. It does not deal with any procedure for registering domain 

names at any lower level, like energycommerce.gov for example. 

And so that is an important distinction to keep in mind, that the 

IANA functions are very limited in terms of what they provide to 

the Internet and the community. They are very important. But 

114 

they are very limited. And other issues related to other functions 

are—— 

Mr. JOHNSON. All right. 

Well, you know, I know that the appeals process is part of that 

overall attempt to improve transparency. How will this be addressed in the proposal specifically with regard to the appeals process? 

Mr. DELBIANCO. Thank you, Congressman. Stress tests 29 and 

30 actually looked at the question you raised about, say, accountants, right? Because .accountant was a very popular new top level 

domain that was bid by several companies. And if the .accountant 

company had made commitments about only allowing licensed accountants to get domain names and CPAs, then the question was 

could ICANN hold them to that commitment? That was what these 

stress tests looked at. 

The team came up with a recommendation, and it says, quote, 

‘‘ICANN shall have the ability to negotiate, enter into, and enforce 

agreements, including public interest commitments, with contract 

parties in service of its mission.’’ So the point there is that we 

looked at those stress tests and determined ICANN could enforce 

those contracts to ensure that it could protect public interests with 

respect to domains that signed up for certain criteria for people to 

register a second level domain. 

Mr. JOHNSON. OK. Ambassador Gross, do you believe that the 

proposed accountability changes are sufficient? How can we be sure 

that these measures will be enough to guarantee accountability in 

the years to come? And what are the most important elements of 

any truly accountable transition? 

Mr. GROSS. Thank you very much. I do believe that if fully implemented that the proposals that have been set forth will ensure that 

accountability going forward. I think that one of the key pieces of 

this is that the mission of ICANN has now been clarified to be 

quite technical in nature. And therefore, the opportunity for much 

of the mischief that we have all been collectively concerned about, 

that is the issue of going off and doing things beyond its formal 

remit, and being encouraged to do so by governments and by others, will be less. 

And thanks to the efforts of those who worked so hard on the accountability piece, that the enforceability of ensuring that ICANN 

does its technical job and no more should be assured. 

Mr. JOHNSON. OK. All right. Mr. Chairman, I yield back. 

Mr. WALDEN [presiding]. Thank you. And now we will go to Ms. 

DeGette for questions. 

Ms. DEGETTE. Thank you, Mr. Chairman. I really just have one 

question. First of all, thanks for everybody’s hard work. 

The final proposal provides for direct enforcement of the Internet 

community’s ability to remove an individual director or the entire 

ICANN board through the courts. Can somebody talk about how 

that is going to work and how that would play out if the proposal 

was adopted? 

Don’t all volunteer at once. 

Mr. DELBIANCO. Be happy to, Congresswoman. 

Ms. DEGETTE. Thanks. 

115 

Mr. DELBIANCO. This was a very powerful discussion on the 

CCWG—— 

Ms. DEGETTE. I imagine. 

Mr. DELBIANCO. Because it ended up being our ultimate nuclear 

option power, that if the board is continuing to ignore the community’s will, the community’s interpretation of its mission, then it 

might leave us with no recourse other than to remove one or all 

of the directors. 

This is not uncommon in corporations and trade associations, 

and yet ICANN had no such mechanism. So the empowered community that I described earlier would mount a petition to remove 

one or all directors. Then it would go into a consultation process 

so that the board understood why we were so upset with them. So 

there is an opportunity at several increments on this decision 

model to potentially remedy the problem. That if we could not come 

to terms on it, if we had four groups, four of the advisory committees and stakeholder organizations in favor of spilling the board, 

they are considered to be gone. 

California law allows a designator, which is the structure we are 

using, to have statutory power to remove the board. And I believe 

we will also require pre-letters filed by each board of directors 

member such that if this power is exercised in accordance with the 

bylaw, their resignation becomes immediate. This is to save us the 

trouble of having to go to court to exercise the power that the California law gives us. 

Ms. DEGETTE. And was there pretty much consensus around this 

after the debate and discussion? 

Mr. DELBIANCO. It was the consensus that was earned by persistence of the community. You can bet that the board of directors 

and their lawyers were none too happy with this, and wanted to 

impose conditions, preordained reasons that you could take the directors down. But the community insisted that we might just have 

a difference of opinion on what ICANN’s mission is interpreted to 

be. We didn’t need to have preordained conditions to take the board 

down. So we were able to prevail, but there was resistance. 

Ms. DEGETTE. Thank you. Thank you very much, Mr. Chairman. 

I yield back. 

Mr. WALDEN. I thank the gentlelady for her questions. 

And to our panelists, thank you for the great work you have done 

to get us to this point. I feel like it has been a really solid partnership to make sure that the Internet governance, that we get that 

right, because it matters for the whole world, not just the United 

States. But it certainly matters to us. 

And so with that, I want to thank you all for participating. Members of our subcommittee who may have had other commitments 

today in other hearings may have some questions. So we hope we 

can submit those to you for the record and that you can get back 

to us, as you always have, in a timely manner. 

And with that, I thank you again for your testimony, and our 

subcommittee stands adjourned. 

[Whereupon, at 12:08 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

116 


'Tfie. 

Hetitage Foundation 

214 Massachusetts Avenue, NE • Washington DC 20002 • (202) 546-4400 • heritage.org 

Statement for the Record 

Privatizing the Internet Assigned Number 

Authority 

Statement for the Record for the 

Subcommittee on Communications and Technology 

Energy and Commerce Committee 

United States House of Representatives 

March 17, 2016 

Brett D. Schaefer and Paul Rosenzweig 

The Heritage Foundation 
117 


Our names are Brett D. Schaefer and Paul Rosenzweig. We are, respectively, the Jay Kingham 

Fellow in International Regulatory Affairs and a Visiting Fellow at The Heritage Foundation. 

The views we express in this statement for the record are our own and should not be construed as 

representing any official position of The Heritage Foundation. 

A critical change in Internet governance is imminent. It has been two years since the U.S. 

National Telecommunications and Information Administration (NTIA), an arm of the Commerce 

Department, announced that it intended to end its current contract with the Internet Corporation 

for Assigned Names and Numbers (ICANN) and "transition key Internet domain name functions 

to the global multi-stakeholder community."1 The U.S. government is now on the verge of giving 

up its historical role in overseeing changes to the Domain Name System (DNS)-the policy 

apparatus and technological method that assigns names and numbers on the Internet. It is the 

system that ensures that "Heritage.org" refers to The Heritage Foundation and not some 

hypothetical ancestry and heritage group. If things proceed as proposed, the DNS system will be 

run independently under ICANN with oversight performed by a new international multistakeholder entity. As the Administration and Congress consider the transition, projected to be 

completed before the end of the fiscal year, they should proceed with great caution. 

In its 2014 announcement, before the transition could occur, NTIA required ICANN to develop a 

formal proposal that would assure the U.S. that the termination of its historical contractual 

relationship would not threaten the security and openness of the Internet, undermine the bottomup multi-stakeholder process, or replace the current role of the NTIA with a government-led or 

intergovernmental organization solution. That proposal has now been drafted and approved by 

the relevant groups in ICANN (known as supporting organizations and advisory committees or 

SO/ACs) and the ICANN board.2 There are a number of positive aspects to the proposal that, if 

implemented as outlined, would create mechanisms for the ICANN community to hold the board 

and staff accountable and reverse imprudent decisions. To the extent it does so, the proposal is to 

be welcomed as a step in the right direction. 

Important details, however, remain to be resolved in the implementation stage. Although the 

proposal outlines greatly improved accountability measures, it is important that these 

mechanisms be implemented in a robust, easily useable manner in order to help protect the newly 

reconfigured ICANN from capture by those seeking to advance a narrow business or political 

agenda and allow the community to block policies that could threaten the stability, security, or 

openness of the Internet. Another concern is that the proposal, while not replacing the NTIA with 

a governmental or intergovernmental solution, would greatly enhance the power of governments 

within ICANN relative to the status quo. 

Fundamentally, however, the uncertainties of how this new ICANN structure would operate 

should lead the U.S. to retain some oversight until there is confidence that it will work smoothly 

as envisioned. To that end, we recommend a "soft extension" of the existing contractual 

relationship--one that allows ICANN two years to demonstrate that the new procedures it is 

'News release, "NTIA Announces Intent to Transition Key Internet Domain Name Functions," National 

Telecommunications and Information Administration, March 14,2014, http://www.ntia.doc.gov/pressrelease/20 14/ntia-announces-intent-transition-key-internet-domain-name-functions (accessed March 15, 20 16). 2

ICANN, "Plan to Transition Stewardship ofKcy Internet Functions Sent to the U.S. Government," March 10, 2016, 

https:l/www.icann.org/newslannouncement-2016-03-10-en (accessed March 15, 2016). 
118 


putting in place actually work to hold the corporation accountable. The transition to a multistakeholder, global system is too important to get wrong and too important to rush. 

A Long, Difficult Process 

In March 2014, the NTIA announced that it intended "to transition key Internet domain name 

functions to the global multistakeholder community" and asked ICANN to convene a group of 

global stakeholders to develop a proposal on a new process to replace the NTIA's "procedural 

role of administering changes to the authoritative root zone file-the database containing the lists 

of names and addresses of all top-level domains."3 In that announcement, however, NTIA stated: 

NTIA has communicated to ICANN that the transition proposal must have broad 

community support and address the following four principles: 

Support and enhance the multistakeholder model; 

Maintain the security, stability, and resiliency of the Internet DNS; 

Meet the needs and expectation of the global customers and partners of the 

lANA services; and, 

Maintain the openness of the Internet. 

Consistent with the clear policy expressed in bipartisan resolutions of the U.S. 

Senate and House of Representatives (S.Con.Res.50 and H.Con.Res.127), which 

affirmed the United States support for the multistakeholder model oflnternet 

governance, NTIA will not accept a proposal that replaces the NTIA role with a 

government-led or an inter-governmental organization solution.4 

After NTIA made its announcement, ICANN quickly convened the lANA Stewardship 

Transition Coordination Group (ICG), comprised of three sub-groups on Domain Names: the 

Cross Community Working Group on Stewardship (CWG-Stewardship), Numbering Resources (CRISP 

Team), and Protocol Parameters (IANAPLAN Working Group). 5 This effort focused on the 

technical questions raised by the transition and how the gaps in process resulting from the 

withdrawal of the NTIA would be filled. The narrow focus of this effort, combined with the 

earlier start, led to the ICG being largely complete by January 2015. 

To their credit, however, many in the ICANN community made clear that they would not be 

satisfied with a narrow technical proposal that would only address the gaps arising from the end 

of the U.S. contractual relationship with ICANN. They insisted that long-standing concerns 

3

News release. "NT!A Announces Intent to Transition Key Internet Domain Name Functions." 

'News release, "NTIA Announces Intent to Transition Key Internet Domain Name Functions." 5 A descriptive chronology and the ICG proposal are available at: lANA Stewardship Transition Coordination Group 

(!CG), "Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (lANA) Functions from 

the U.S. Commerce Department's National Telecommunications and Information Administration (NTJA) to the 

Global Multistakeholder Community," March 20!6, https://www.icann.org/enlsystem/files/filesliana-stewardshiptransition-proposal-1 Omar 16-cn.pdf (accessed March 15, 2016 ). 
119 


about insufficient transparency and accountability within ICANN and its decision-making 

process needed to be addressed before the transition occurred. 

An initial attempt by the ICANN board to lead this process raised strong objections from the 

ICANN community which was concerned that the board would not develop or support robust 

accountability measures that would allow the community to block objectionable board decisions 

or recall the board. An unprecedented unanimous statement from all the stakeholder groups and 

constituencies that make up ICANN's Generic Names Supporting Organization (gNS0)6 

rebuked the board for trying to control this process and called for "creation of an independent 

accountability mechanism that provides meaningful review and adequate redress for those 

harmed by ICANN action or inaction in contravention of an agreed upon compact with the 

community."7 

After several months of negotiation, the Board and the community agreed to establish the Cross 

Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) 

which held its first meeting in December 2014. Over the past 14 months, the 28 members and 

203 participants of the CCWG-Accountability-including the authors of this paper-dedicated 

enormous effort to developing a robust accountability proposal. As of March 2016, the group had 

held 209 meetings and calls consuming 404 total hours and had exchanged 12,430 e-mails on the 

proposal.8 

The final draft of their proposal was approved by the chartering organizations and the ICANN 

board at a meeting in early March and the board has now transmitted both the ICG and the 

CCWG-Accountability proposals to the NTIA. The NTIA, in turn, has announced that it will 

review the combined proposal to determine if it meets the criteria set forth and consult with 

Congress as the transition moves forward. 9 

Board Interference and Procedural Irregularities. A number of challenges arose in this 

process beyond the normal differences of opinion and approach inherent in negotiating an 

important document between groups with different equities. High among these challenges was 

the tendency of the ICANN board to act as a participant in the process rather than as a recipient 

of the proposal as devised by the multi-stakeholder community. When queried, ICANN Chief 

Executive Officer Fadi Chehade assured Congress that the board would allow the multistakeholder community to independently develop the accountability plan and would transfer it 

6

The gNSO is one of three "supporting organizations" in ICAl'•IN. It is by far the largest and provides ICANN with 

policy advice relating to generic names-most domain names on the Internet in the .org, .edu, .com, and other toplevel domains (TLDs), including all of the relatively new gTLDs, like .biz and .net. The country code name 

supporting organization (ccNSO) provides advice relating to country code domains (for example, the .uk that 

signifies the United Kingdom). The address supporting organization (ASO) provides advice regarding IP 

addresses--the unique number given to every computer connected to the Internet. 

'Brett Schaefer and Paul Rosenzweig, "Fireworks Erupt at ICANN's London Meeting," Daily Signal, June 29,2014, 

http://dailysignal.com/20 14/06/29/fireworks-erupt-icanns-london-meeting/ (accessed March I5, 20 16). 3

lCANN, "lANA Stewardship Transition and Enhancing ICANN Accountability Engagement and Participation 

Statistics," March 2014 through March 2016, https://www.icann.org/resourccs/pages/iana-accountabilityparticipation-statistics-20 15-11-04-en (accessed March 15, 20 16). 

Assistant Secretary for Communications and Information and NTIA Administrator Lawrence E. Strickling, 

"Reviewing the lANA Transition Proposal," National Telecommunications and Information Administration, March 

I], 2016, https://www.ntia.doc.gov/blog/2016/reviewing-iana-transition-proposal (accessed March 15, 2016). 
120 


forward to the NTIA even if it contained provisions that the board opposed. 10 Yet, the board did 

not adhere to this promise and, instead, intervened to shape the proposal in fundamental ways 

and to block provisions that it opposed. 

Most notable was the board's opposition to the Cross Community Working Group on Enhancing 

ICANN Accountability Second Draft Report (Work Stream 1) because it recommended making 

ICANN into a member-based nonprofit corporation with the SO/ ACs jointly comprising a single 

member called the "Sole Member Model." 11 Under California law, which is the relevant law 

because ICANN is incorporated in California, this model would have given the community 

significant authority over the Board in much the same way that shareholders have control over 

for-profit corporations. 

The board objected to membership for several reasons that the board thought could be potentially 

destabilizing, but prominent among them was the board's concern that the "Sole Member Model 

would bring with it statutory rights that could impact ICANN and its operations, without any 

fiduciary duty to ICANN."12 In other words, the board objected to membership even though it 

was a standard California method of governance in nonprofit organizations because, in its view, 

the model gave the membership too much power over ICANN operations. · 

In the face of the board's opposition, the CCWG-Accountability backed down and did not insist 

that the board transfer the proposal to the NTIA as promised to Congress. Instead, the CCWGAccountability dramatically altered the proposal, wasting weeks, perhaps months, of work. A 

new proposal titled "CCWG-Accountability- Draft Proposal on Work Stream I 

Recommendations" was submitted to public comment on November 30. 13 This proposal 

abandoned the membership model and suggested a "Sole Designator Model" that would 

consolidate the SO/ACs as a group into a "designator" (later called the Empowered Community 

or EC). Under California law, a designator has far more limited powers than a member. To try 

and address these gaps, the proposal would grant specified powers to the EC through new or 

amended bylaws. However, this shift is notable because it weakened the legal standing and 

independence of the ICANN community as compared to a member organization. Specifically, 

10ICANN CEO Fadi Chehade promised the Senate that "if the stakeholders present [ICANN] with [such] a proposal 

[w]e will give it to NTIA, and we committed already that we will not change the proposal." Hearing, Preserving the 

Multistakeho!der Model of Internet Governance, Committee on Commerce, Science and Transportation, U.S. 

Senate, February 25, 2015, http://www.commerce.senate.gov/public/index.cfm/20 15/2/preserving-themultistakeholder-model-of-internet-governance (accessed March 15, 2016). 11 ICANN, "Cross Community Working Group on Enhancing !CANN Accountability 2nd Draft Report (Work 

Stream!)," Public Comment, August 3, 2015, https://www.icann.org/public-comments/ccwg-accountability-2015-

08-03-en (accessed March 15, 2015). 

"Quoted from ICANN Board, "Frequently Asked Questions Regarding Approach for Community Enforceability," 

September II, 2015, http://torum.icann.org/lists/comments-ccwg-accountability-03augl5/msg00045.html (accessed 

March 15, 2016). For the entire comment see ICANN Board, "ICANN Board submission of supplementary and final 

comments to the CCWG-Accountability 2nd Draft Proposal Public Comment forum," September II, 2015, 

http://forum.icann.org/lists/comments-ccwg-accountability-03aug 15/msg00045.html (accessed March 15, 20 16). 

"ICANN Public Comment, "CCWG-Accountability Draft Proposal on Work Stream I Recommendations," 

November 30, 2015, https:/lwww.icann.org/public-commentsldraft-ccwg-accountability-proposal-2015-II -30-en 

(accessed March 15, 2016). 
121 


many powers would be subject to change via bylaw amendment and would lack the guarantees 

of statute in California law, i.e., an authority external to ICANN. 14 

Other significant board interventions occurred during the process and even after the report was 

supposed to be final. As noted by ICANN's Intellectual Property Constituency (!PC) in its 

comment to the gNSO: 

[A] last minute, Board-initiated change was made less than two weeks before the 

commencement of ICANN 55 and the deadline for CCWG Chartering 

Organization decisions whether to approve or reject the Final Proposal. The 

Board-initiated change did not involve a fringe issue; rather it went to the heart of 

the proposal, and in particular the balance of government interests and private 

sector interests. 15 

The Board's comment led to changes in the proposal even though that stage of the process had 

officially closed and only copyedits and corrections were being accepted. This procedural 

irregularity was not unique. Again as noted by the !PC: 

While the effort of the CCWG has spanned 14 months, many of the details 

ultimately provided in the Proposal were not completely articulated until the 

Third Draft Proposal circulated in late Fall2015 .... Review of the final proposal 

between publication and the Marrakech meeting, as well as the earlier truncated 

comment period for the Third Draft Proposal, which fell during the Winter 

holidays, required herculean efforts to review, digest and (when called for) draft 

responsive comments. Given their importance, it is unfortunate that the proposed 

changes to ICANN governance and accountability mechanisms were fast 

tracked. 16 

Despite the fact that the NTIA and ICANN repeatedly assured Congress that it was more 

important to get this right than to get it done on time, these procedural compromises were 

deemed necessary because of a perceived need to meet political deadlines. The NTIA has the 

ability to extend the U.S. oversight role through September 2019, but there is a keen desire in 

ICANN, the NTIA, and among many in the community to get the transition done prior to the 

2016 U.S. presidential election out of concern that a new Administration might not support the 

time line. It is uncertain if the report contains unknown or unnoticed problems or oversights that 

could impair ICANN operations or governance, but if they do surface after the transition occurs 

this politically driven haste would be partially to blame for the failure to diligently vet this 

proposal. 

14This is by no means the only such board intervention. In fact, the very start of this process began poorly with the 

ICANN Board authorizing the CEO to "explore ways to accelerate [an] end of U.S. stewardship" without consulting 

the ICANN community or making the decision public. For a detailed chronology, see Jordan Carter, "Chronology of 

Recent ICANN Accountability milestones," https:l/internetnz.nz/sites/default/files/20 15-1 0-09-ICANN-acctychrono.pdf(accessed March 15, 2016). 15GNSO, "Transmittal of results ofGNSO Council consideration ofCCWG-Accountability Supplemental Final 

Proposal," March 9, 2016, p. 5, http:llmm.icann.orgipipermaillaccountability-crosscommun ity lattachments/20 160309/fl b5ce45/CCW G-Accountabil itytransmittalo fresults-9March20 16-000 l. pdf 

(accessed March 15, 2016). 16lbid., pp. 5-6. 
122 


Final Report: Good and Bad 

The CCWG-Accountability proposal, titled the "Supplemental Final Proposal on Work Stream I 

Recommendations," was finalized on February 23 and was supported by all seven SO/ACs17 and 

the ICANN Board at the ICANN 55 public meeting in Marrakech March 4-10. The document is 

incredibly detailed and totals 346 pages, including 15 annexes and another 11 appendices. 18 The 

length of the report and the need to be familiar with ICANN's structure and processes makes it 

very difficult to comprehend for those who have not been intimately involved in the CCWGAccountability process. 

This will prove to be a barrier to efforts in Congress to practice due diligence in their scrutiny of 

the report. In an attempt to assist congressional scrutiny, this paper will highlight significant 

positive and negative elements of the proposal. 

Positive Elements. Overall, the proposal has a number of positive accountability measures and 

establishes necessary limits to ICANN's area of responsibility. 

• Limiting ICANN's mission. One major concern is that ICANN will see its role as broader 

than the technical management of the DNS system and the Internet Assigned Number 

Authority (lANA) function, which has the responsibility for assigning names and numbers to 

websites. Without the backstop provided by the NTIA contract, some in the ICANN 

community were concerned that ICANN could fall victim to mission creep that could distract 

the organization from its primary purpose or drain resources through support of tangential 

activities. Under the CCWG-Accountability proposal, ICANN's mission would be "limited 

to coordinating the development and implementation of policies that are designed to ensure 

the stable and secure operation of the Domain Name System and are reasonably necessary to 

facilitate its openness, interoperability, resilience, and/or stability." The proposal also 

clarifies that anything not specifically articulated in the bylaws would be outside the scope 

and mission ofiCANN. 19 If this mission statement is both adopted and adhered to, that 

would go a long way to assuring that ICANN did not seek to become a "global guardian of 

the Internet" or take on responsibilities beyond its narrow remit. 

• Creating fundamental bylaws. Certain bylaws, including those establishing new 

accountability mechanisms and clarifying the mission ofiCANN, were deemed too important 

to be changed by board action alone. Under the proposal they will also require approval by 

the ICANN community as represented in the Empowered Community. This useful change 

prevents the Board from unilaterally acting on critical matters without broader support and 

entrenches limits on ICANN in the form of quasi-constitutional restrictions. 

17 ln addition to the supporting organizations, ICANN also has four advisory committees, or ACs, that are intended 

to advise the ICANN community and the ICANN board on specific policy issues or to represent the views and 

opinions of parts of the ICANN community that are not integrated into the Supporting Organizations. The four ACs 

are: the At-Large Advisory Committee (ALA C); the Root Server System Advisory Committee (RSSAC); the 

Governmental Advisory Committee (GAC); and the Security and Stability Advisory Committee (SSAC). 18 CCWG-Accountability, "Supplemental Final Proposal on Work Stream 1 Recommendations," February 23, 2016, 

https://www.icann.org/en/system/files/files/ccwg-accountability·supp·proposal (accessed March 15, 2016). 19lbid., p. 26. 
123 


• Establishing the Empowered Community. The CCWG-Accountability proposal would 

establish a new unincorporated association within ICANN called the Empowered 

Community (EC) populated by five ofiCANN's SO/ACs: the Address Supporting 

Organization (ASO); the At Large Advisory Committee (ALA C); the Country Code Names 

Supporting Organization (ccNSO); the Generic Names Supporting Organization (gNSO); and 

the Government Advisory Committee (GAC).20 The EC would have the statutory power to 

appoint and remove ICANN board directors, either individually or as a group. In addition to 

the power to appoint and remove directors, new bylaws will be drafted or existing bylaws 

amended to also grant the EC the power to: (I) reject an operating plan, strategic plan, and 

budget proposed by the board; (2) approve changes to fundamental bylaws; (3) reject 

changes to standard bylaws; (4) initiate a binding Independent Review Process; and (5) reject 

board decisions related to reviews of the lANA functions, including triggering of any Post 

Transition lANA (PTI) separation. In addition, the bylaws are to be amended to grant the EC 

the right to inspect ICANN accounting books and records, the right to investigate ICANN via 

a third-party audit, and mandate board engagement and consultation with the EC before 

approving an annual or five-year strategic plan, an annual or five-year operating plan, the 

ICANN annual budget, the lANA functions budget, any bylaw changes, and any decisions 

regarding the PTI separation process. Taken together, these changes provide significant 

power to the EC to involve itself in ICANN decisions, scrutinize ICANN activities, block 

undesired actions, and hold the board to account. 

• Improving the Independent Review Process (IRP) and Request for Reconsideration 

(RFR) mechanisms. The IRP is an independent external arbitration review mechanism to 

ensure that ICANN does not go beyond its limited scope and mission through its actions or 

decisions or violate its bylaws. Under the CCWG-Accountability proposal, the IRP process 

would be slightly broadened in scope, be made accessible to any materially affected person 

or party (including the EC) and less costly, and more systematic through the establishment of 

a standing panel of independent experts in ICANN-related fields. The RFR, which is means 

for any individual to appeal for a review of any TCANN action or inaction, would be 

improved by expanding the range of permissible requests, lengthening the time for filing a 

request, establishing firm deadlines for RFR procedures and responses, adding transparency 

requirements, narrowing the grounds for dismissal, and requiring the board to handle all 

requests directly. 

These accountability changes are a significant improvement over the status quo and are 

unambiguously good outcomes. Happily, their implementation is not dependent on NTIA and/or 

congressional approval of the CCWG-Accountability proposal. When asked, the board 

confirmed at ICANN 55 in Marrakech that the accountability improvements in the proposal 

would be adopted and implemented regardless of the whether the transition proceeds or not.21 

20The other to advisory committees, the Security and Stability Advisory Committee (SSAC) and Root Server System 

Advisory Committee (RSSAC), informed the CCWG-Accountability at the ICANN Public Meeting in October 2015 

(ICANN 54) that they did not want to participate as decisional participants in the Empowered Community. It is 

unclear under the current proposal whether this decision is permanent or can be reversed. 21 A member of the Commercial Stakeholder Group asked the board to confirm, "Even in the event that there were 

some political problem with the transition, it is your intention that we will have implemented the bylaws changes. 

That the accountability reforms are done and that we will have implemented the other aspects and that political 
124 


Remaining Issues of Concern. While the CCWG-Accountability proposal has many good 

provisions, it is far from perfect. Among the concerns: 

• An undefined commitment to human rights. The CCWG-Accountability proposal includes 

a recommendation to incorporate into the ICANN bylaws an undefined commitment to 

internationally recognized human rights. Implementation of this recommendation is deferred 

to the future under "Work Stream 2," but the inclusion of this commitment into the bylaws 

and strong support in some parts of the ICANN community means that implementation is 

very likely to happen. "Internationally recognized human rights" is a very broad, imprecisely 

defined term and there is no clear delineation of where internationally recognized human 

rights start or end. Indeed, it is a fundamental tenet in the United Nations and among the 

majority of human rights advocates that human rights are all interrelated, interdependent, and 

indivisible. There are over three dozen rights recognized in the Universal Declaration of 

Human Rights (UDHR); International Covenant on Civil and Political Rights (ICCPR); and 

the International Covenant on Economic, Social and Cultural Rights (ICESCR). The 

OHCHR identifies over 50 human rights issues.22 New rights-the so-called third-generation 

human rights like the right to development and the right to peace-are being promulgated 

and seriously considered even if they currently lack the acceptance of more established 

human rights. 23 

Moreover, there are often differing understandings of these rights. For instance, under the 

U.S. constitution, freedom of speech is an extremely broad right, but in many other countries 

there are significant constraints on freedom of speech in the interests of preventing, for 

instance, hate speech. lfiCANN adopts the more common and limited interpretation of free 

speech in its human rights commitment, it could create means for governments or businesses 

to use ICANN to moderate content. 

In short, there is a legitimate concern that a broad commitment to "internationally recognized 

fundamental human rights" would, even if circumscribed by the caveat that the commitment 

be within the mission and scope ofiCANN as is the case in the CCWG-Accountability 

proposal, be an invitation for various civil society groups, ICANN constituencies, and 

governments to petition the organization to commit to and involve itself in human rights 

impediment to the transition will not prevent the implementation of those bylaws reforms." Bruce Tonkin answered 

on behalf of the Board, "So the only caveat in that case, .. .is if the NTIA wished to continue its agreement, we would 

just need to make sure that any changes were not in conflict with that agreement, which really doesn't involve much 

in the way of any of the accountability work that you've been involved in." ICANN board member Cherine Chalaby 

added, "So I'd like to add to what Bruce is saying. Basically on the accountability reforms, I think the train has left 

the station and the reasons for that is the community has come to an agreement.! mean, if the community did not 

come to an agreement, it would be a different thing. So I think they are good accountability measures and we're 

committed to go forward with it, even ifthere are political positions and such. So subject to some of the caveats that 

Bruce has done, we're all in support of that." Video and initial transcript available at ICANN Public Meetings, 

"Joint Meeting of the ICANN Board & the Commercial Stakeholders 1 Adobe Connect: Full [EN]." March 8, 2016, 

https:/ /meetings. icann .org/ en/marrakech5 5/schedule/tue-board-csg/ac-board-csg -08mar 16-en (accessed March 15, 

2016). 

220ffice of the High Commissioner for Human Rights, "List of Human Rights Issues," 

http://www.ohchr.org/EN/lssues/Pages/Listoflssues.aspx (accessed March 15, 2016). 23The first generation is civil and political rights like freedom of expression and the right to due process. The second 

generation is economic, social, and cultural rights like the right to education and the right to housing. 
125 


activities or actions not directly related to its mission or observe human rights in a manner 

that could be in tension with a truly free and open Internet. 24 

• Enhanced power for governments. The CCWG-Accountability proposal would see 

governments significantly increase their power in ICANN versus the status quo. Currently, 

governments are represented in ICANN through the Government Advisory Committee 

(GAC), which is an advisory body unable to appoint board directors. The GAC has a power 

that other advisory bodies do not-an ability to convey advice to the board that the board 

must implement unless opposed by majority vote. But, even if GAC advice is rejected, the 

board is obligated to try and find a mutually acceptable solution with the GAC. This special 

advisory role has frustrated the community because it allows the GAC to intervene at late 

hours and upend community-led policy development processes.25 

Under the CCWG-Accountability proposal, the GAC would retain this special advisory 

power, but with slightly different details. The threshold for board rejection actually increases 

from 50 percent to 60 percent, but in return only GAC advice that is truly adopted by 

consensus (without any formal objection) can trigger the board's obligation to find a 

mutually acceptable solution. 

In addition to retaining its privileged advisory power, the GAC also will now be a decisional 

participant in the EC with a direct say in the exercise of all of the community powers 

including board dismissal, bylaw changes, etc.26 This is somewhat moderated by the "GAC 

carve-out," which prohibits the GAC from being a decisional participant when the matter 

involves a board decision based on consensus GAC advice. This restriction is to prevent the 

GAC from getting two bites at the apple, i.e., being able to providing consensus advice to the 

board and using its new authority in the EC to impede efforts by the community to block 

implementation of that advice if the board approves it. 

24Comment of Brett D. Schaefer and Paul Rosenzweig of The Heritage Foundation on the Human Rights 

Commitment in the Cross Community Working Group on Enhancing ICANN Accountability Second Draft Report 

(Work Stream 1 ), http:l/forum.icann.orgllistslcomments-ccwg-accountability-03augl5/msg00037 .html (accessed 

March 15, 2016). 25 A good example of the pernicious potential that arises from GAC intervention is the controversy that continues to 

plague ICANN over the question of the delegation of the .africa domain name. Initially, the board accepted the 

GAC's advice to favor one applicant over another-a decision it adopted in apparent violation of its own internal 

procedures. The losing applicant, DotConncctAfrica, was compelled to seek redress through the Independent 

Review Process-an adjudication that led, in the end, to a declaration that the board had acted improperly. Sec 

DotConnectAfrica Trust v. Internet Corporation for Assigned Names and Numbers (July 9, 2015), 

https:/lwww. icann .org/ enlsystemlti lcsifileslfinal-declaration-2-redacted-09jull5-en.pdf (accessed March 15, 20 16). 

More recently, when the board sought to restart the .africa delegation (again awarding the domain to another 

applicant), DotConnectAfrica sought, and received, a temporary restraining order from a California court. See 

DotConnectAfrica Trust v. Internet Corporation for Assigned Names and Numbers, No. CV 16-00862 (C.D.Calif., 

Mar. 2, 2016), https:/lwww.icann.org/enlsystemlfiles/filesllitigation-dca-minute-order-plaintitf-ex-parte-application04mar16-en.pdf(accessed March 15, 2016). The case remains pending and a final adjudication on the merits has yet 

to be made, but it should trouble all observers that the Board's apparent deference to the GAC has embroiled 

ICANN in such a long-running and contentious piece of litigation. 26Because the GAC often is unable to arrive at clear consensus positions, it is uncertain how often or under what 

circumstance or procedures the GAC will be able to agree to exercise this decisional authority. 
126 


Objectively, the CCWG-Accountability proposal would unquestionably grant the GAC 

powers that it did not previously have and increase government authority in ICANN versus 

the status quo. These changes were recommended even though some Members of Congress 

have explicitly opposed this outcome. Specifically, a 2014 letter from Senator John Thune 

(R-SD) and Senator Marco Rubio (R-FL) made clear that, from their perspective, 

government influence should not be expanded in the transition: 

First, ICANN must prevent governments from exercising undue influence over Internet 

governance. In April we led 33 Senators in a letter to NTIA regarding the lANA 

transition. We wrote that "[r]cplacing NTIA's role with another governmental 

organization would be disastrous and we would vigorously oppose such a plan. ICANN 

should reduce the chances of governments inappropriately inserting themselves into 

apolitical governance matters. Some ideas to accomplish this include: not permitting 

representatives of governments to sit on ICANN's Board, limiting government 

participation to advisory roles, such as through the Government Advisory Committee 

(GAC), and amending ICANN's bylaws to only allow receipt ofGAC advice if that 

advice is proffered by consensus. The lANA transition should not provide an opportunity 

for governments to increase their influence.27 

A number ofCCWG members and participants shared this concern about government 

increasing its power in ICANN post-transition as did some representatives from ICANN 

stakeholder and constituency groups. 28 Yet, this is precisely what would occur if the 

proposal is enacted as recommended. 

• An immature organization. One ofthe hallmarks of an institution ready for additional 

responsibility is the facility with which it handles its existing obligations. Over the past year 

it has become somewhat concerning that lCANN is not apparently ready to deal with 

controversial matters. An instance of note was the decision to open up a new gTLD--the 

.sucks domain. For obvious reasons many intellectual property rights holders objected to the 

creation of the domain-nobody at The Heritage Foundation, for example, is overjoyed at the 

prospect of a "heritagefoundation.sucks" domain. 29 

When, however, intellectual property rights holders complained to ICANN, rather than 

address the issue directly, ICANN ducked. It referred the question of whether .sucks was 

lawful to regulatory authorities in the United States (where ICANN is incorporated) and 

Canada (where the domain name owner of .sucks is incorporated) and asked them to 

adjudicate the matter. Both countries, quite reasonably, declined to offer their opinion on the 

"Senator John Thune and Senator Marco Rubio, letter to Dr. Stephen Crocker, Chairman ICANN Board of 

Directors, July 31, 2014, https:l/www.icann.orglenlsystem/files/correspondence/thune-rubio-to-crocker-31jull4-

en.pdf(accessed March 15, 2016). 28See comments of individual Non-Commercial Stakeholders Group (NCSG) counselors and the Intellectual 

Property Constituency (!PC). GNSO, "Transmittal of results of GNSO Council consideration of CCWGAccountability Supplemental Final Proposal," March 9, 2016, http://mm.icann.orglpipermail/accountability-crosscommunity/2016-March/Oll694.html (accessed March 15, 2016). 29To be clear, though we are not overjoyed at the prospect, our support for the freedom of expression means that we, 

generically, do not oppose the creation of the domain. The discomfort we feel is the price of free speech. 
127 


matter. 30 It does not engender great confidence in ICANN that, at the same time it is seeking 

greater independence from governmental authorities, it turns to those same authorities for 

assistance in resolving controversial matters within its remit. As the transition moves 

forward, ICANN will need to develop the institutional maturity to deal with controversies of 

this sort independently. 

• Many details yet to be finalized. The CCWG-Accountability proposal is, in essence, a very 

detailed blueprint, not a finished product. Some basic issues remain unclear. For instance, are 

the decisions of the Security and Stability Advisory Committee (SSAC) and the Root Server 

System Advisory Committee (RSSAC) to be non-decisional participants permanent or could 

they change their minds? Questions were also raised by several NCSG counselors on the 

gNSO Council who, in their support for the CCWG-Accountability proposal submitted 

statements on how they thought the text should be implemented.31 One particularly important 

problem that has yet to be resolved is precisely how the EC will operate--especially in the 

future when new SOs and ACsjoin (or drop out) of the community. There is a real prospect 

that the Empowered Community-which is at the core of fundamental accountability for 

ICANN-may be hamstrung by unanticipated an unintended consequences of the current 

structural proposals. Rather than address this problem, however, in a politically motivated 

rush to judgment, the CCWG-Accountability and the board left the resolution of this difficult 

question ambiguous in the proposal, which if it is to be clarified will be done in the bylaws 

drafting or implementing language.32 

The actual bylaws and implementing rules and procedures to execute the proposal have yet to 

be completed. As noted by the IPC: 

These recommendations [in the CCWG-Accountability proposal] will affect 

overarching ICANN governance concerns. However, it is not entirely clear how 

they will affect ICANN's day-to-day operations or whether unintended 

consequences may arise, particularly given the timeframes for review that were 

provided to the community .... As the revised bylaws themselves have yet to be 

produced, and the new paradigm for ICANN accountability remains practically 

3

°Chris Burt, "Canada Responds to ICANN on Controversial .SUCKS New gTLD," The Whir, June 17,2015, 

http://www.thewhir.com/web-hosting-news/canada-rcsponds-to-icann-on-controversial-sucks-new-gtld (accessed 

March 15, 2016). 31GNSO, "Transmittal of results of GNSO Council consideration of CCWG-Accountability Supplemental Final 

Proposal," March 9, 2016, pp. 8-10, http://mm.icann.org/pipermail!accountability-crosscommunity /attachments/20 160309/fl b5cc45/CCW G-Accountabi I itytransmittalofresults-9March20 16-000 !.pdf 

(accessed March 15, 2016). 32For instance, a group ofNCSG councilors on the gNSO Council felt the need to address this ambiguity in their 

acceptance of the CCWG-Accountability proposal, "The aforementioned NCSG representatives in the GNSO 

council support Recommendation 2 with the understanding that bylaws will reflect the CCWG's requirement that the 

exercise of community powers should not require unanimity of participating AC/SOs, and that no single AC/SO 

could block exercise of any power." GNSO, "Transmittal of results of GNSO Council consideration of CCWGAccountability Supplemental Final Proposal," p. 9. 
128 


untested, the !PC is deeply concerned that the voices of the businesses and 

individuals who own intellectual property may be unfairly marginalized. 33 

This concern involves questions that will apply across the ICANN community and they 

should share the IPC's concerns about implementation. There was and will be ample 

opportunity during this compressed implementation period for errors or deviation, deliberate 

or otherwise, from the intent of the CCWG-Accountability participants. Indeed, the ICANN 

lawyers will be side by side with the independent CCWG-Accountability lawyers drafting 

new bylaw text Considering the sometimes opposing views between the board and the 

CCWG-Accountability, it would hardly be surprising if the board again tried to influence 

details of the implementation to its preference. 

A Community Rarely Able or Willing to Unite 

While there are serious concerns with the report, there is an even more fundamental concern 

about whether the community can actually be decisive and united enough to utilize the 

accountability measures provided to the EC in the CCWG-Accountability proposal. Indeed, the 

entire premise of the transition is that the multi-stakeholder ICANN community has sufficient 

maturity and cohesiveness to serve as a counter-weight to the board and the enhanced influence 

of the GAC. Unfortunately, the CCWG-Accountability development process leaves doubts about 

the foundational suitability of the community as bedrock for accountability. 

To exercise most powers requires the support of three or four of the five decisional participants. 

This will be very difficult to achieve even in the face of substantial cause. The SO/ ACs each 

have differing equities and perspectives that could lead them to be indifferent even when the 

ICANN board and staff are acting in a very objectionable manner. This is compounded by the 

GAC being a decisional participant because the GAC is unlikely to be able to arrive at a common 

position in a timely manner if at all. 

Issues like this contributed to the calls for mandating accountability improvements in tandem 

with the transition and, if the accountability measures are implemented properly, there will be 

avenues for righting ICANN missteps and forcing compliance with agreed procedures and rules. 

However, the most powerful accountability measures are restricted to the Empowered 

Community and are premised on it being able to act in a decisive and dependable manner. 

Unfortunately, the practical challenges of exercising the powers and experience casts doubt on 

the community's ability or willingness to fulfill such a role. 

Recommendations 

The NTIA and Congress will be considering the CCWG-Accountability proposal in the coming 

months. The Internet is too important to act in haste or imprudence. There are numerous 

questions and uncertainties that should lead the U.S. to: 

• Vet the proposal thoroughly. The lANA Transition Coordination Working Group (ICG) 

has had its proposal complete since early 2015 and work has been ongoing in assessing the 

llGNSO, "Transmittal of results ofGNSO Council consideration ofCCWG-Accountability Supplemental Final 

Proposal," p. 6. 
129 


changes necessary to complete the technical aspects of the transition proposal and drafting 

bylaws and language to implement those recommendations. The CCWG-Accountability 

proposal has only recently been adopted and is much less developed. New and amended 

bylaws will be drafted in the coming weeks that will be reviewed by the CCWGAccountability, the ICANN board, and the broader ICANN community through a public 

comment period. If warranted, the draft bylaws will be tweaked before being approved by the 

ICANN board in May and the entire package will then be considered by the NTIA and 

Congress. During this consideration, ICANN will need to flesh out details for 

implementation of the proposal, which will not be complete until later in the summer. The 

NTIA has insisted that it requires a "comprehensive and complete"34 product for 

consideration that includes both the ICG and the CCWG-Accountability proposals and 

implementation details, particularly bylaw changes. 35 This is the correct approach-the 

proposal cannot be properly assessed unless all the details are fleshed out and finalized. 

Neither the NTIA nor Congress should feel compelled to hasten their consideration if they 

feel more time is necessary to vet the proposal. It is better to do this right than to get it done 

according to an artificial deadline. 

• Draft a new two-year contract allowing for a resumption of the NTIA's historical 

relationship with ICANN. Even if the NTIA and Congress are satisfied with the proposal, it 

would be wise to provide a transition to the transition. The proposed changes to ICANN's 

structure and governance model are significant and untested. It would be prudent to allow 

ICANN to operate under the new structure for a period of time to verify that unforeseen 

complications and problems do not arise while retaining the ability to reassert the historical 

NTIA relationship if unforeseen complications arise. In fact, the ICANN Board suggested 

such an approach in its public comment to the first CCWG report: 

We believe the Sole Membership Model as proposed has the potential for changes 

in the balance of powers between stakeholder groups in ICANN's 

multistakeholder model. At any time, the balance of power and influence among 

any of the "groups" within ICANN can change based upon the willingness or 

ability to participate in the Sole Member, changing for example the balance 

between governments and the private sector and civil society. We believe that if 

the Sole Membership Model is the only proposed path forward, it may be prudent 

to delay the transition until the Sole Membership Model is in place and ICANN 

has demonstrated its experience operating the model and ensuring that the model 

works in a stable manner. 

34Remarks by Assistant Secretary of Commerce for Communications and Information Lawrence E. Strickling, 

"ICANN, lANA Transition, Larry Strickling, NTIA, State of the Net Conference," State of the Net Conference, 

Washington, DC, January 27, 2015, http://www.cxpvc.com/2015/0l/icann-iana-transition-larry-strickling.html 

(accessed March 15, 2016). 35 As stated by Assistant Secretary Lawrence E. Strickling, "The other critical path element that emerges from the 

legislative language is the need to work out the specific language of bylaw changes as quickly as possible. We want 

to avoid a lengthy delay after we get the plan while language is being written and reviewed by the community as that 

will delay when we can provide our certification to Congress." Remarks of Assistant Secretary of Commerce for 

Communications and Information Lawrence E. Strickling, ICANN Meeting, Buenos Aires, Argentina, June 21, 

20 15, https:llwww .ntia.doc .gov /speechtestimony /20 15/remarks-lawTence-e-strickling-assistant-secretary-commercecommunications-and-i (accessed March 15, 2016). 
130 


While the current proposal is not based on membership, it does propose radical 

changes in ICANN governance and shifts in the balance of power and influence 

among groups within ICANN and thus it would be prudent to maintain the current 

arrangement, or at least a means for reasserting NTIA oversight, for the next two 

years until the new structure proves itself. 

• Urge those implementing the CCWG-Accountability proposal to apply the 

strictest interpretations on the CCWG-Accountability proposal for GAC 

participation. Ideally, the NTIA and Congress would send the transition proposal 

back to ICANN with instructions to reverse the expansion in government authority in 

the CCWG-Accountability proposal. However, even if the NTIA or Congress do not 

mandate specific changes to the CCWG-Accountability proposal as a condition for 

approval, there is room for interpretation within the proposal to increase the bar for 

the GAC to utilize its authority under the proposal. For instance, the consensus 

requirement for GAC advice to the board should be clear and require the GAC to 

affirm that no government opposed the advice. The GAC must not be allowed to 

circumvent this requirement through creative alterations in its decision-making 

procedures. Also, prior to the vote to exercise the EC powers, each of the five 

decisional participants should be required to inform the EC whether they wish to 

participate or not in a timely manner. If the GAC or any other decisional SO/AC 

cannot make such a declaration, it should be excluded and the thresholds for 

exercising EC powers lowered to observe the understanding throughout the CCWGAccountability process that "the exercise of community powers should not require 

unanimity ofparticipating AC/SOs, and that no single AC/SO could block exercise of 

any power."3 

• Require enumeration of human rights to protect ICANN's narrow scope and 

mission. The NTIA and the ICANN Community were correct to insist that strict 

limits on ICANN's mission and scope be incorporated into the bylaws. They should 

ensure that the human rights bylaw does not undermine this central priority by asking 

ICANN to specifically enumerate the human rights commitments in a manner that is 

consistent with the NTIA criteria and directly related to ICANN's core purpose and 

operations to avoid mission creep. Clear linkages to ICANN's mission and operation 

include the fundamental human rights of freedom of expression and opinion (as 

interpreted in the U.S. under the First Amendment to the Constitution), freedom of 

association, the right to due process, the right to privacy, the right to own property, 

including intellectual property, and the "right to the protection of the moral and 

material interests resulting from any scientific, literary or artistic production of which 

he is the author."37 If future circumstances dictate that an additional human right be 

added to ICANN's commitment, this can be done through a bylaw amendment. In the 

current unexplored situation, however, caution should prevail. 

36GNSO, "Transmittal of results ofGNSO Council consideration ofCCWG-Accountability Supplemental Final 

Proposal," p. 9. 37Universal Declaration of Human Rights, Articles 9, 10, II, 12, 17, 19, 20, and 27, http:llwww.un.org/enlunivcrsaldeclaration-human-rightslindex.html (accessed March 15, 20 16). 
131 


Conclusion 

Nearly half of the world's population, including almost everyone in the United States, 

uses the Internet for business or personal purposes and pursuits and it has become a 

critical vehicle for research, discourse, and commerce. ICANN plays an important role in 

maintaining the safety, security, reliability, and openness of the Internet and it is 

necessary that ICANN remain accountable and transparent. The CCWG-Accountability 

proposal provides numerous improvements and tools that can be used to achieve this after 

the U.S. contractual relationship expires, but there are many uncertainties. 

The CCWG-Accountability proposal is a blueprint for an accountable institution, but it is 

unclear if the result will be sound or if the ICANN community can or will act responsibly 

and in a timely manner to hold ICANN accountable. Prudence dictates caution. The U.S. 

should take the time to make sure everything is working properly before executing to an 

irreversible decision. 

-Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the 

Margaret Thatcher Center for Freedom, of the Kathryn and Shelby Cullom Davis 

Institute for National Security and Foreign Policy, at The Heritage Foundation. Paul 

Rosenzweig is a Visiting Fellow in the Douglas and Sarah Allison Center for Foreign 

and National Security Policy, of the Kathryn and Shelby Cullom Davis Institute for 

National Security and Foreign Policy, at The Heritage Foundation. 

******************* 

The Heritage Foundation is a public policy, research, and educational organization recognized as exempt 

under section 501(c)(3) of the Internal Revenue Code. It is privately supported and receives no funds from any 

government at any level, nor does it perform any government or other contract work. 

The Heritage Foundation is the most broadly supported think tank in the United States. During 2014, it had 

hundreds of thousands of individual, foundation, and corporate supporters representing every state in the U.S. 

Its 2014 income came from the following sources: 

Individuals 75% 

Foundations 12% 

Corporations 3% 

Program revenue and other income 10% 

The top five corporate givers provided The Heritage Foundation with 2% of its 2014 income. The Heritage 

Foundation's books are audited annually by the national accounting finn ofRSM US, LLP. 

Members of The Heritage Foundation staff testifY as individuals discussing their own independent research. 

The views expressed are their own and do not reflect an institutional position for The Heritage Foundation or 

its board of trustees. 
132 


INTERNET 

INFRASTRUCTURE 

COALITION 

i2Coalition Statement on the lANA Transition 

March 13, 2016 

The Internet Infrastructure Coalition (i2Coalition) is composed of a diverse group of 

Internet infrastructure companies that help enable key technology solutions. The 

i2Coalition supports these businesses that ingeniously facilitate the operation of the 

Internet between transmission and delivery of content layers, including web 

hosting, cloud infrastructure, and data centers. These Internet infrastructure 

providers are a vital economic engine in the U.S. as they build the framework of the 

Internet on top of which the entire digital economy rests. We are made up of 

enterprises that are dedicated to the idea that an open and free Internet drives 

economic growth and enhances the lives of people across the U.S. and around the 

globe. 

The i2Coalition supports the transition of stewardship over the lANA functions to 

the global multistakeholder community and the comprehensive package agreed to 

by the global Internet community last week on the closing day of the ICANN public 

meeting in Marrakech. 

The i2Coalition members rely on the continued security, stability, resiliency, and 

openness of the Internet. We support the National Telecommunications and 

Information Administration's (NTIA) proposed transition of its stewardship over 

the lANA functions to the global multistakeholder community. This bottom-up, 

private-sector led model of governance has served the Internet well to date, and we 

believe it is the most effective model for keeping the Internet open, stable, secure, 

and resilient in the future. 

The multistakeholder model of Internet governance is the best way to ensure that 

private sector-friendly, pro-growth policies continue to enable the open Internet's 

growth. Removing U.S. Government control over lANA functions and creating a truly 

multistakeholder model removes perceptions that governmental or 

nongovernmental stakeholders are excluded from key decisions surrounding the 

lANA functions. A successful transition is the best way to ensure that pro-growth, 

private sector-friendly policies continue to enable the growth of the open Internet. 

The global Internet community has seen to it that the world can enjoy a stronger 

ICANN and a stronger Internet through the transition of lANA. Anyone who believes 

in freedom of expression and the power of the connected world owes this group of 

heroes a huge debt of gratitude. Through their hard work they have ensured that no 

one entity controls the Internet and have set the stage for this global resource to 

continue to be governed by the stakeholders it serves. It is now up to the U.S. 

Government to ensure the completion of this process by approving the package once 
133 


INTERNET 

INFRASTRUCTURE 

COALITION 

the NTIA has certified that it meets the criteria established by it two years ago in 

anticipation of the transition. 
134 


ICLE International Center 

for Law & Economics 

IN ICANN WE TRUST: ASSURING ACCOUNTABLE 

INTERNET GOVERNANCE 

Kristian Stout, Geoffrey A. Manne & R. Ben Sperry 

ICLE Innovation Policy Research Program 

White Paper 20 16- I 

This white paper is an abbreviated excerpt of a forthcoming scholarly article. 

It is available online at: http:l/laweconcenter.org/images/articles/icleicann _accountability _short_final.pdf 

ICLE I 3333 NE Sandy Blvd., Suite 207 I Portland, OR 97232 I 503.770.0652 

icle®laweconcenter. org I ®laweconcenter I www .laweconcenter. org 
135 


ICLE International Center 

for Law & Economics 

IN ICANN WE TRUST: ASSURING ACCOUNTABLE 

INTERNET GOVERNANCE 

Kristian Stout, Geoffrey A. Manne & R. Ben Sperry 

It's no surprise to anyone that illegal activity happens online. What may be surprising, 

however, is that one of the central figures in administering core Internet functions is deeply 

ambivalent (at best) about its role in preventing illicit online activity. 

Since 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) has been 

the organization tasked by the U.S. government with overseeing the Domain Name System 

(DNS). The DNS is the system that enables domain names to resolve- meaning that 

when you type "google.com" in a browser address window you will reliably receive 

Google's search engine each time. That reliability is a boon for Internet users, most of the 

time. But much mischief can be conducted through web sites, as well, and a system that 

reliably serves up these sites imposes costs on its users. 

Take one recent example. In July 2015, a Bloomberg News piece from "bloomberg.market" 

indicated that Twitter was in talks over a $31B USD buyout. Naturally, the value of Twitter 

stock shot up before returning to normal. The problem, however, was that it was a totally 

fabricated event, one that the currently lax accountability regime underlying the DNS only 

makes easier. 1 

One would think that ICANN would have effective procedures in place for removing (or 

otherwise sanctioning) domain names created or used for illegal purposes. However, even 

though it possesses contractual control over its registries and registrars (the entities 

responsible for managing and registering top level domains and domain names), the 

practical reality is that illegal conduct is rarely ever deterred by ICANN. 

The consequences ofiCANN's non-action are evident. ICANN has refused to effectively 

deter content piracy on the Internet, and pirated content currently constitutes something on 

the order of 25% of Internet traffic. 2 It has also overseen an inexorable increase in websites 

1 Matt Egan and Frank Pallotta, Twitter shares soar on phony Bloomberg story, CNN (Jul. 14, 2015), available at 

http:/ /money.cnn.com/20 15/07 I 14/investing/twitter-fake-story-b1oomberg/. 

2 Aaron Sankin, 24 percent of Internet trafficis devoted to piracy, study says, THE DAILY Dor (Sep. 23, 20 13), 

available at http://www .dailydot.com/business/nbcuniversal-comcast-piracy-study I. 
136 


dedicated to phishing scams. As of December 2014, phishing occurred in 19% of the new 

gTLDs and nearly two-thirds of the phishing occurred in just one gTLD (.XYZ). 3 To date 

ICANN has steadfastly refused to take action despite the significant cost that its refusalostensibly rooted in its desire not to regulate Internet content- imposes on community 

members. 

ICANN has an accountability problem. 

The ICANN community, represented by the IANA Stewardship Transition Coordination 

Group (ICG), recently submitted its final report4 to Congress and the NTIA outlining its 

proposal for an independent (and accountable) ICANN. This transition period offers an 

ideal opportunity to assess and to correct the deficiencies in the structure of the 

organization. 

A few central issues emerge: 

I. ICANN cannot serve in a purely "technical" capacity because stewardship of the 

DNS necessarily requires choosing among competing policies. 

2. An accountable ICANN can be optimally secured by realigning the organization 

along a constitutional model that "bakes in" due process procedures and suitably 

responds to the policy preferences of the multistakeholder community. 

3. To the extent that policy choices are selected by the multistakeholder community, 

those choices should be systematically respected by proper enforcement of 

contractual obligations. 

IF YOU CHOOSE NOT TO DECIDE, YOU STILL HAVE MADE A CHOICE5 

As legal scholar John Hart Ely has observed, "an insistence on 'neutral principles' does not 

by itself tell us anything useful about the appropriate content of those principles. "6 A 

"neutral" stance that purports not to adopt any particular policy position is not actually 

neutral; rather it effectively adopts whatever policy predominates by default. 

3 Greg Aaron, Phishing in the New gTLDs, CIRCLEID (May 27, 2015), available at 

http:/ /www.circleid.com/ posts/20 150527 _phishing_in_the_new __gtlds/. 

4 See lANA STEWARDSHIP TRANSITION COORDINATION GROUP (ICG), PROPOSAL TO TRANSITION THE 

STEWARDSHIP OF THE INTERNET ASSIGNED NUMBERS AUTHORITY (lANA) FUNCTIONS FROM THE U.S. 

COMMERCE DEPARTMENT'S NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION 

(NTIA) TO THE GLOBAL MULTISTAKEHOLDER COMMUNITY (Mar. 2016), available at 

https: //www. icann.org/ en/ system/ ftles/ files/ iana-stewardship-transition-proposal-1 Omar 16-en. pdf. 

5 Rush (Neal Peart, Geddy Lee & Alex Lifeson), Freewill (Mercury Records I 980). 

6 JOHN HART ELY, DEMOCRACY AND DISTRUST 55 (1980). 

2 
137 


ICANN has consistently claimed that its role in Internet governance is merely a technical 

one, and that it is not the "regulator of Internet content. "7 It has made this declaration 

largely in response to calls from a range of interests for the organization to enforce language 

in its contracts that prohibits the use of web sites for illicit conduct. But despite its claims, by 

refusing to enforce this language, ICANN is not staking out a neutral position. Instead, it is 

very much adhering to a social policy, in this case one that prioritizes avoidance of 

censorship over the array of other priorities that could be incorporated into ICANN's 

governance of the DNS. But regulation guided by a default set of priorities is still regulation. 

While management of the DNS itself is a technical operation, 8 the impending transfer of 

lANA stewardship entails imbuing ICANN with an overtly government-like function that 

demands more than mere technical acuity: 

DNS policy questions... are difficult, because while they all have a 

"technical" dimension, they do not have only a technical dimension; they 

invoke some important and deeply-held values far removed from the 

"merely" technical. How they are resolved will have an impact ... on trade 

and commerce and competition, on intellectual property rights, on privacy, 

and on free expression.9 

Whatever ICANN's historical role has been, following the transition ICANN will have a 

dual role- one that includes the obligation to properly "steward" the DNS, as well as to 

run it. 10 It is clear that the U.S. government expects ICANN to take a more assertive role 

following the transition, and Congress has made plain that ICANN's accountability to the 

parties it regulates is a paramount condition of its approval of the IAN A transition. 11 

7 Allen R. Grogan, ICANN Is Not the Internet Content Police, ICANN (Jun. 12, 2015), available at 

https:/ /www.icann.org/news/b1og/icann-is-not-the-internet-content-police 

8 See, e.g., NATIONAL ACADEMY OF SCIENCES COMMITTEE ON INTERNET NAVIGATION AND THE DOMAIN 

NAME SYSTEM: TECHNICAL ALTERNATIVES AND POLICY lMPLICA TIONS, SIGNPOSTS IN CYBERSPACE: 'filE 

DOMAIN NAME SYSTEM AND INTERNET NAVIGATION (2005), available at 

http:/ /www.nap.edu/read/11258/chapterll. 

9 DAVID G. POST & D ANIELLE l<BHL, CONTROLLING INTERNET INFRASTRUCTURE: 'filE "IAN"A 'TRANSITION" 

AND ICANN ACCOUNTABILITY, PART II, at 20 (Open Technology Institute, Sept. 2015), available at 

https:/ /static.newamerica.org/attachments/9764-controlling-internet-infrastructure2/IANA_Paper_2_fmal.8594b4de27dd4ecf9be46d348f848cfl.pdf. 

10 NTIA Announces Intent to Transition Key Internet Domain Name Functions, NTIA (Mar. 14, 2014), available at 

https: I I www.ntia .doc .gov I press-release 120 141 ntia -announces-intent-transition-key-internet-domain-namefunctions. 

11 See, e.g., S. Con. Res. 50, 112th Cong. (Dec. 5, 2012), availableathttps:/ /www.congress.gov/bill/ll2thcongress/ senate-concurrent-resolution/ 50/text ("[I]t is the sense of Congress that the Secretary of State, in 

consultation with the Secretary of Commerce, should continue working to implement the position of the 

United States on Internet governance that clearly articulates the consistent and unequivocal policy of the 

United States to promote a global Internet free from government control and preserve and advance the successful 

multistakeholdermode/ that governs the Internet today.") (Emphasis added). 
138 


An adherence to "social policy neutrality" is thus insufficient for lCANN's expanded 

mandate. The DNS is a public good upon which a critical function of the Internet depends, 

and it is incumbent upon ICANN to administer it justly. To allow lCANN to don a cloak of 

policy neutrality is, in effect, to allow it to pollute with impunity- and to foist onto society 

all the costs associated with illicit use of the DNS (or its interdiction). 

The multistakeholder community seems to agree. The Cross Community Working Group 

on Enhancing ICANN Accountability (CCWG-Accountability) recently presented its 

Accountability Final Proposal, intended to govern lCANN following the lANA 

stewardship transition. 12 Among its suggestions is the creation of an "Empowered 

Community" to represent the interests ofiCANN stakeholders directly, endowed with the 

authority to appoint and remove directors (or the entire board), and vote on amendments to 

ICANN's bylaws. 13 Notably, among the core values that the CCWG-Accountability group 

recognizes are respect for internationally recognized "human rights" 14 (presumably 

including the rights to property and contract15), as well as the ability to include public 

interest commitments (PlCs) in registry and registrar contracts. 16 

It is incumbent upon the architects of the lANA transition, and Congress as the final 

authority overseeing the transition, to make sure that ICANN's governance structure is 

capable of incorporating stakeholder values in a predictable, just and inclusive manner, and 

ensuring that the multistakeholder community retains the ability to guide the inclusion of 

these values and their operationalization in ICANN's activities. ICANN's legitimacy 

depends upon reliable process. 

12 See CCWG-ACCOUNTABILITY SUPPLEMENTAL FINAL PROPOSAL ON WORK STREAM 1 RECOMMENDATIONS 

(Feb. 23, 2016), available at https:/ /www.icann.org/en/system/files/ftles/ccwg-accountability-supp-proposalwork-stream-l-recs-23feb 16-en.pdf. 

13 Id. at Recommendation 13, ~ 46 and 47. 

14 Id. at 32,1 170. 

15 Although not all expressiofiS of international human rights have as strongly incorporated a firm commitment 

to property rights, many have. The Universal Declaration of Human Rights holds that "[e]veryone has the 

right to the protection of the moral and material interests resulting from any scientific, literary or artistic 

production of which he is the author." Universal Declaration of Human Rights, art. 27(b). Among many other 

examples, the European Court of Human Rights has upheld such a right on numerous occasions and 

interpreted it to include, among other things, "contractual rights with economic value." The Inter-American 

Court on Human Rights has similarly identified a human right to property, including "corporeal and 

incorporeal elements and any other intangible object capable of having value." Christophe Golay & Ioana 

Cismas, The Right to Property from a Human Rights Perspective, INTERNATIONAL CENTRE FOR HUMAN RIGHTS 

AND DEMOCRATIC DEVELOPMENT LEGAL OPINION 12-13. The Opinion concludes that "[t]he right to 

property has been enshrined as a human right in international law- both conventional and customarythrough universal and regional treaties and national constitutions." Id. at 28. 

16 CCWG-AccoUNTABILITY, supra note 12, at 29, 1!146. 

4 
139 


GUARANTEEING ACCOUNTABILITY THROUGH DUE PROCESS 

CONSTITUTIONALISM 

It is important to note that NTIA is not transitioning its authority to ICANN. Rather, in 

good constitutional fashion, it is transitioning "key Internet domain name functions to the 

global multistakeholder community." 17 ICANN and its current technical functions are distinct 

from both the full set of functions that NTIA is now fully privatizing, as well as the intended 

recipient of the authority: the global multistakeholder community. It is for this reason that 

accountability- to the global multistakeholder community -is so essential to an 

acceptable transition. 

Some scholars have suggested that ICANN's new accountability regime be secured through 

application of constitutional principles 18 - which presents an excellent framing for the 

issues involved. These scholars tend to echo ICANN's own preference for neutral 

governance, however, ostensibly rejecting any social policy governance role in order to 

constrain ICANN's discretion. 

The proper question when considering ICANN's constitutional order is not which set of 

interests should be enshrined in the organization (or should be imported through a "neutral" 

administrative scheme), but how the balance of interests among ICANN's stakeholders and 

I CANN itself should be allocated, and how conflicts among those interest should be 

resolved. 19 As we have noted, it is only through a careful specification of, and dedication to, 

due process that the substantive values of the multi-stakeholder community can be 

recognized and upheld. 

Get the process "right" and an organization will be equipped to handle (more or less) 

whatever the world may throw at it. Establishing expectations, clearly allocating decisionmaking and other powers within the community, and delineating legitimate and 

unacceptable interests, would empower various constituencies with the incentive and ability 

to police and constrain ICANN from within. Rather than shunning the messy internal 

conflicts around the community's non-technical preferences, an optimal governance 

structure will embrace them and use them as a bulwark against abuse by ICANN's 

17 I d. at Annex 14, ~ I (Emphasis added). 

18 POST & KEHL, supra note 9, at 2 ("We believe that designing effective and trustworthy accountability 

mechanisms for a post·transition ICANN is a problem of constitutional design, and that the tools of 

constitutional analysis can be usefully employed in order to come up with an effective accountability 

structure."). 

19 "In every society, conflicts of interest among the members of that society must be resolved. The process by 

which that resolution ... occurs is known as competition. Since, by definition, there is no way to eliminate 

competition, the relevant question is what kind of competition shall be used in the resolution of conflicts of 

interest." Armen A. Alchian, Some Economics of Property Rights, in ARMEN A. ALCHIAN, ECONOMIC FORCES AT 

WoRK 127 (1977). 

5 
140 


management, much as the United States government's "system of checks and balances" 

does. 

David Post and Daniel Kehl have identified four salutary principles that should guide the 

formulation of a constitution for ICANN: 

1. A clear and precise delineation between the powers that the corporation may, 

and those that it may not, exercise. 

2. A division of the institution's powers so that they are not concentrated in one set 

of hands. 

3. Internal, institutional mechanism(s) to enforce the constraints of (1); and 

4. Transparency and simplicity. 20 

In order to establish and to preserve limited control over social aspects of the Internet, it is 

necessary to affirmatively incorporate these into ICANN's mission. But there is nothing 

contradictory about having a constitution that both enforces structural principlesseparation of power, independent judicial review as well as one that confers power on the 

global stakeholder community by establishing mechanisms for it to establish and enforce 

basic legal and moral principles. 

Quite the opposite in fact: It is only the board's "unchecked autonomy" that is defective and 

that leads to procedural unfairness.Z1 Structures like the CCWG-Accountability's 

"Empowered Community" proposal address this problem.22 

Difficult questions and complex situations will inevitably emerge for any organization, and 

without suitably accounting for these (as opposed to pretending that a purely technical 

mandate avoids them), ICANN will be set up for failure. In order to maintain its legitimacy, 

the organization will need to provide a well-specified mechanism to deal with unanticipated 

(and anticipated) social and legal challenges. 

ENFORCING CONTRACTS: I Do NOTTHINK IT MEANSWHATYOUTHINK 

IT MEANS 

In the end, ICANN's governance structure should facilitate the adoption of whatever 

principles the ICANN stakeholder community deems appropriate as part of the stewardship 

of the DNS. Very likely, much of this space will be found through voluntary, private 

arrangements between registries, registrars, and third parties. An overarching commitment 

to enforcing legitimate contracts, therefore, even ones that espouse particular policy 

objectives, will be a core attribute of a well-organized ICANN. 

20 See id. at iv. 

21 !d. (internal citations omitted). 

22 See CCWG-ACCOUNTABILJTY supra note 12. 

6 
141 


In fact, far and away ICANN's most significant failing has been the abdication of its 

responsibility to enforce the terms of its own contracts, particularly the Registrar 

Accreditation Agreement (RAA). 23 The effect of this obstinance is that ICANN has failed to 

exercise its obligation to maintain a "secure, stable, [and] resilient. .. Internet" 24 free of 

costly "pollutants" like piracy, illegal prescription drugs, and phishing sites that impose 

significant costs on others with relative impunity. 

As a result, Congress has opposed moving forward with the transition of the lANA 

stewardship functions outside of the U.S. government's control. 25 To an important degree, 

this resistance is rooted in Congress' concerns about ICANN's ability and willingness to 

enforce the law including fairly uncontroversial protections of public health and property 

rights. 26 

The absence of effective enforcement by ICANN is not for lack of an available remedy. In 

fact, the RAA provides that domain name cancellation - effectively, banishment from the 

Internet- is available for errant registered name holders. 27 It appears to be the case, rather, 

that ICANN is simply unwilling to enforce the terms of its own contractsY 

Under the terms of the RAA, domain name registrars have a broad obligation to respond to 

reports of abuse- defined essentially as illegal conduct29 - on sites within their domains. 30 

Registrars are also required to use "commercially reasonable efforts" to prevent registered 

name holders from using a registered name in a way that infringes on the legal rights of 

23 2013 Registrar Accreditation Agreement, at§ 1.1.13, ICANN (Sept. 17, 2013}, available at 

https:/ /www.icann.org/resourceslpagesl approved-with-specs-20 13-09-17-en (hereinafter "RAA''). 

24 S. Res. 71, !14th Cong. § 1(3)(B)(Feb. 5, 2015), available at 

https:l lwww.congress.gov 1!!41bi!lsl sres71 IBILLS-114sres7lats.pdf. 

25 PhilipS. Corwin, FYJ6 Appropriations Act Extends lANA Transition Freeze without DOTCOM Act, C!RCLEID 

(Dec. 16, 2015}, available at 

http: I I www .circleid.coml posts/20 151216 _fy 16 _approp _act_extends_iana_transition_freeze_ without_dotcom 

_act/. 

26 See generally Stakeholder Perspectives On ICANN: The .SUCKS Domain and Essential Steps to Guarantee Trust and 

Accountability in the Internet's Operation: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Internet, 

114th Cong. 7 (May I 3, 20 I 5}, available at https: I I judiciary. house.gov I wp-content! uploads/ 2016 I 02 I 114-

23_94603.pdf. ("ICANN and other stakeholders must abide by their contractual provisions to prohibit the use 

of domain names for the pirating of copyrighted material and other illegal activity .... It is critical that ICANN 

help prevent piracy and other unlawful conduct by registrars and registrants.") 

27 RAA § 3.7.7.11. 

"It of course also bears noting that frequently the registrars terms of service also provide for suspension of 

domains used for illicit purposes. See GoDaddy Domain Name Registration Agreement, at§ 8, available at 

https: I lwww.godaddy .com/ agreements/ showdoc.aspx?pageid=REG_SA&isc=gofdh026 (last revised Feb. 

19, 2016). 

29 RAA§ 1.1.13. 

"RAA § 3.18.1 

7 
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third parties. 31 At the same time registry operators are obligated to require registrars to 

prohibit name holders "from distributing malware, abusively operating botnets, phishing, 

piracy, trademark or copyright infringement, fraudulent or deceptive practices, 

counterfeiting or otherwise engaging in activity contrary to applicable law." 32 

Together, these provisions (and others) ostensibly create a backstop that should safeguard 

against the DNS being co-opted for a variety of illegal activities including fraud, sales of 

dangerous goods or contraband, and intellectual property infringement. Unfortunately, 

theory does not always work out in practice. 

It was not until public pressure became overwhelming that the illegal sales of 

pharmaceuticals was addressed by the registrars, and, even to this day, infringement of 

intellectual property continues on a massive scale. 33 Although it is certainly i:rue that no 

practical amount of vigilance will ever completely deter illicit use of the DNS, the current 

minimal to non-existent level of enforcement arguably allows far more illegal conduct to 

proliferate than is necessary or desirable. 

Absent direct enforcement by ICANN, the registries, or the registrars, self-help (including 

through the courts) by injured parties amounts to a frustrating game of whack-a-mole in 

which offending sites are thwarted, at best, by a particular website hosting service, only to 

crop up in short order on one of the nearly innumerable other such services. This costly and 

ineffective dynamic is essentially a repudiation ofiCANN's contractual obligations and an 

abdication of the organization's accountability to the Internet community. 

It may seem easy to dismiss a LegitScript complaining about illegal pharmaceuticals, 34 or 

the RIAA complaining about piracy, as merely self-interested entities trying to outsource 

some of their costs of doing business. But, while it's true that these organizations are the 

entities engaging in direct enforcement in these cases, it is crucial to remember that they are 

not the sole beneficiaries of such efforts. Behind the actions of these organizations are a web 

oflegal rights and contractual relationships that protect the public health and support the 

creation of tremendously important industries. Consumers are relieved from the need to 

"RAA §§ 3.7.7, 3.7.9. 

32 ICANN, Registry Agreement, Specification I I, at 90, available at 

https: I I newgtlds.icann. org/ sites/ default/ files/ agreements/ agreement -approved-09jan 14-en .pdf (last updated 

Jan. 9, 2014). 

33 See, e.g., DA VTD PRICE, NET NAMES POLICY ANALYSIS: SIZING THE PIRACY UNIYERSE (Sept. 2013), available 

at https:/ I copyrightalliance.org/ sites/ default/files/2013-netnames-piracy.pdf; Alexandra Gibbs, And 2015's 

most pirated TV shows and films are ... , CNBC (Dec. 28, 20 15), available at 

http: I I www .cnbc.com/20 15 I 121281 game-of-thrones-and-interstellar-named-20 ISs-most -pirated-tv-show-andfilm.html. 

34 See Stakeholder Perspectives On ICANN, supra note 26, at 31-34 (statement of John C. Horton, President and 

CEO ofLegitScript). 

8 
143 


worry about the technical details of who infringes what and how those infringements are 

remedied because, from their rationally ignorant vantage point, "it all takes care of itself." 

Except it doesn't. For the system to work, and for consumers to benefit from the legal and 

contractual relationships that undergird the Internet economy, there needs to be a party on 

the other side of industry-led efforts that provides a meaningful enforcement mechanism. 

When ICANN repudiates its obligation to respect public health concerns and property 

rights, it is in fact exporting a harm directly onto consumers. And it forces consumers to 

bear the costs of its own desire to avoid complicated legal questions - despite its 

commitments to the contrary. 

CONCLUSION 

Allegedly neutral, purely technical administration is another way of describing an order in 

which any behavior- no matter how dangerous, costly or patently illegal- is permitted. 

Although this may be a bulwark against censorship, such a regime goes beyond even the 

United States' relative free speech maximalism and imposes significant costs on the 

community. 

For ICANN to meet its stakeholders'- and Congress'- accountability expectations, it 

will need to implement a governance structure that establishes and preserves procedural 

fairness and a "rule of law," including respect for voluntary ordering ofrights by contract. 

The impetus to equate "procedural fairness" with "policy neutrality" is understandable, but 

an aspiration for a value-free DNS administration will not make it so in reality. "DNS 

policy questions ... have a "technical" dimension, [but] they do not have only a technical 

dimension; they invoke some important and deeply-held values far removed from the 

'merely' technical."35 

Instead, it is the establishment and protection of settled expectations through well-defined 

and responsive organizational structures, facilitation of private ordering, and a system of 

checks and balances that disciplines abusers of process and abuses of power that will enable 

ICANN to properly steward the DNS post-transition. 

35 PosT & KEHL, supra note 9, at 20. 

9 
144 


ICLE International Center 

for Law & Economics 

About The International Center for Law and Economics 

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145 


FRED UPTON, MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

Mr. Steve DelBianco 

Executive Director 

NetChoice 

ONE HUNDRED FOURTEENTH CONGRESS 

cteongregg of tbe llniteb $tateg 

j!Jouse of ~epresentattbes 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 Majority (202) 22!1·2927 

Minonty (202) 22!:>-·3641 

April22, 2016 

1401 K Street, N.W. 

Washington, DC 20005 

Dear Mr. DelBianco: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows:(!) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, May 6, 2016. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

GregWald 

Chairman 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
146 


Questions for the Record from The Honorable Renee Ellmers 

March 17,2016 hearing before the U.S. House of Representatives, Committee on Energy and 

Commerce, Subcommittee on Communications and Technology. 

"Privatizing the Internet Assigned Number Authority" 

Q.\l_(!nions for Mr. DelBianco: 

Question 1: ICANN is a global organization to provide policy and protection for all citizens throughout 

the world. As threats to our notion's cybersecurity increasingly grow more frequent and more complex, 

without accountability to the United States, how can we ensure that the leadership inside ICANN would 

not be unduly influenced or implement policy that could negatively impact every company and individual 

in the United States who rely upon fair and open access of the internet each and every day? For 

example, the staff of ICANN make decisions every day impacting companies and their very business 

models, such as how to implement policy relating to the new gTLD program or enforcing requirements 

that protect people from bad actors using domain names or web sites to cause harm to others. 

Answer to Ql: 

First, it's important to remember that ICANN coordinates only the Internet addressing system that we 

use to reach websites and route emails. Some cyber attacks might attempt to corrupt internet 

addressing systems, in which case ICANN would have a role in assessing, correcting, and preventing that 

kind of attack. 

While cyber attacks could use domain names and address numbers, please understand that ICANN has 

no role in monitoring or stopping internet traffic or conduct that uses the addressing system. 

Nor does ICANN have any role or power to prevent governments or others from impairing open access 

to internet websites or content when internet traffic crosses their own borders. 

Nor does ICANN leadership make policy decisions, since that is the work that we do within the ICANN 

community of Advisory Committees and Supporting Organizations (ACs and SOs). But you're right to be 

asking about ICANN board and management, since they have significant influence in implementing and 

interpreting the policies the community develops. 

The cross-community working group for this transition (CCWG) published a final proposal in Feb-2016 

giving the community new powers to ensure ICANN was answerable to more than just itself. 1 New 

powers for the community include the ability to challenge ICANN board and management on how the 

implement and enforce consensus policies: 

• Challenge board actions via Independent Review Process (IRP), where decisions are binding 

• Veto strategic plans and budgets proposed by the ICANN board 

• Control the periodic reviews required by the Affirmation of Commitments 

1 Final Accountability Proposal, at https://www.icann.org/en/~ystem/files/files/ccwgwaccountabilit._y:supp¥proposalwwoxK: 

stream~l¥recs-23feb16·en.pdf 
147 


With these new powers, the community of business, technologists, and civil society can challenge the 

way ICANN implements policies and contracts. Any aggrieved party can bring their own IRP against 

ICANN. And if there is sufficient consensus among the newly-created Empowered Community to bring 

an IRP challenge, ICANN must bear the legal costs of the IRP. 

IRP decisions can be enforced in California courts, or in any court that recognizes international 

arbitration proceedings. If the !CANN board were to ignore IRP decisions, the Empowered Community 

could recall one or all of the board of directors- and this power would be enforceable in California 

courts. 

Your question also touches on how to hold ICANN staff accountable for their decisions and actions. The 

CCWG is now turning to several tasks as part of Work Stream 2- accountability measures that can be 

developed after the new ICANN bylaws are adopted. One of the Work Stream 2 projects is to explore 

this very question. 

Staff Accountability is described in the CCWG's final proposal (Annex 12): 

In general, management and staff work for the benefit of the community and in line with ICANN's purpose and 

Mission. While it is obvious that they report to and are held accountable by the ICANN Board and the 

President and CEO, the purpose of their accountability is the same as that of the organization: 

Complying with ICANN's rules and processes. 

Complying with applicable Bylaws. 

Achieving certain levels of performance, as well as security. 

Making their decisions for the benefit of the community and not in the interest of a particular 

stakeholder or set of stakeholders or ICANN the organization alone. 

Having reviewed and inventoried the existing mechanisms related to staff accountability, areas for 

improvement include clarifying expectations from staff, as well as establishing appropriate redress 

mechanisms. The CCWG-Accountability recommends as part of its Work Stream 2: 

The CCWG-Accountability work with ICANN to develop a document that clearly describes the role of 

ICANN staff vis-a-vis the ICANN Board and the ICANN community. This document should include a 

general description of the powers vested in ICANN staff by the ICANN Board of Directors that need, 

and do not need, approval of the ICANN Board of Directors. 

The CCWG-Accountability work with ICANN to consider a Code of Conduct, transparency criteria, 

training, and key performance indicators to be followed by staff in relation to their interactions with 

all stakeholders, establish regular independent {internal and community) surveys and audits to track 

progress and identify areas that need improvement, and establish appropriate processes to escalate 

issues that enable both community and staff members to raise issues. This work should be linked 

closely with the Ombudsman enhancement item of Work Stream 2. 

It is through these community powers and increased staff accountability that US companies and 

individuals can take actions to prevent or reverse policies that negatively impact Americans who rely 

upon ICANN's address coordination to reach websites and deliver communications. 

2 
148 


Question 2: The transition plan asks for the US government to place trust in an organization governed by 

volunteers who self-select leaders rather than elect or appoint leaders. In some cases leaders may or 

may not be qualified, and in some cases may clearly have financial or other interests influencing their 

decision-making and approach to developing policy for everyone. When the internet is so central to 

how our people and companies live and thrive, can we really simply trust that this will be done fairly and 

appropriately, particularly given the political volatility in todoy's climate? What safeguards can we instill 

to ensure fair decisions for all? 

Answer to Q2: 

The organizations that comprise ICANN's volunteer community of stakeholders-- known as Advisory 

Committees and Supporting Organizations (ACs and SOs) --have been part of ICANN since the US 

government helped establish the organization. So the US government has placed its trust in these ACs 

and SOs since 1998, while holding leverage in its ability to withhold the lANA functions contract if ICANN 

failed to meet its responsibilities. 

After this transition, the US government will no longer hold contractual leverage over the lANA 

functions. Instead, the existing community of ACs and SOs will gain new powers to hold ICANN 

accountable if it failed to serve lANA customers and the global internet community. (I described some 

of those powers in my response to the first question above.) 

As your question indicates, it is therefore essential that these community organizations are themselves 

transparent and accountable to the stakeholders they were designed to represent. 

The CCWG is now turning to several tasks as part of Work Stream 2 accountability measures that can 

be developed after the new ICANN bylaws are adopted. One of the Work Stream 2 projects is to explore 

this very question of "Who watches the watchers?" 

Supporting Organizations and Advisory Committee Accountability is described in the CCWG's final 

proposal (Annex 12): 

As the community's power is enhanced, legitimate concerns have arisen regarding the accountability of 

the community {organized as 50s and ACs) in using new Community Powers, i.e., '

1

who watches the 

watcher." 

The CCWG-Accountability reviewed existing accountability mechanisms for 50s and ACs as well as 

governance documents {see above). Analysis revealed that mechanisms are limited in quantity and scope. 

Having reviewed and inventoried the existing mechanisms related to SO and AC accountability, it is clear 

that current mechanisms need to be enhanced in light of the new responsibilities associated with the 

Empowered Community. 

The CCWG-Accountability recommends the following, 

As part of Work Stream 1: 

Include the review of SO and AC accountability mechanisms in the independent structural 

reviews performed on a regular basis. These reviews should include consideration of the 

3 
149 


mechanisms that each SO and AC has in place to be accountable to their respective 

Constituencies, Stakeholder Groups, and Regional At-Large Organizations, etc. 

This recommendation can be implemented through an amendment of Section 4 of Article IV of 

the ICANN Bylaws, which currently states: "The goal of the review, to be undertaken pursuant to 

such criteria and standards as the Board shall direct, shall be to determine (1) whether that 

organization has a continuing purpose in the ICANN structure, and (2) if so, whether any change 

in structure or operations is desirable to improve its effectiveness." 

As part of Work Stream 2: 

Include the subject of SO and AC accountability as part of the work on the Accountability and 

Transparency Review process. 

Evaluate the proposed "Mutual Accountability Roundtable" to assess viability and, if viable, 

undertake the necessary actions to implement it. 

Propose a detailed working plan on enhancing SO and AC accountability 

Assess whether the IRP would also be applicable to SO and AC activities. 

Another response to your question is to examine whether ICANN's new accountability structure will 

adequately contain the power that governments might seek to exercise as part of the Empowered 

Community. 

Governments have influence on ICANN policy development and contract compliance via their collective 

participation in the Governmental Advisory Committee (GAC). The GAC was established when the US 

Commerce Department and American private sector interests first created ICANN in 1998:z 

The Governmental Advisory Committee should consider and provide advice on the activities of the 

Corporation as they relate to concerns of governments, particularly matters where there may be an 

interaction between the Corporation's policies and various laws, and international agreements. 

The GAC has gradually grown in its effectiveness to and its advice to ICANN has grown in importance, as 

seen with policies adopted for the latest expansion of new top-level domains. 

In our previous Congressional testimony, I described a stress test where governments could significantly 

raise their influence via GAC formal advice: 3 

Stress Test #18 is related to a scenario where ICANN's GAC would amend its operating procedures to 

change from consensus decisions to majority voting for advice to the ICANN Board. Since the ICANN 

Board must seek a mutually acceptable solution if it rejects GAC advice, concerns were raised that the 

Board could be forced to arbitrate among sovereign governments if they were divided in their support 

for the GAC advice. In addition, if the GAC lowered its decision threshold while also participating in the 

2 6-Nov-1998, Bylaws for ICANN, at !lliQS~"'-'!'_\Y.icann.org/resources(unthemed-pages/bylaws-1998-11-06-eQ 

3 See Stress Tests 6 & 7, on p. 9 at NetChoice Testimony before the House Energy & Commerce Committee- Ensuring the. 

Security, StabilitY. Resilience, and Freedom of the Global Internet, 2-Apr~2014 

4 
150 


Empowered Community, some stakeholders believe this could inappropriately increase government 

influence over ICANN.4 

Several governments had previously voiced dissatisfaction with the present consensus rule for GAC 

decisions, so it is plausible that the GAC could change its method of approving advice at some point, 

such that a majority could prevail over a significant minority of governments. Early on, NTIA said that 

addressing Stress Test 18 was required for the transition:' 

As a threshold matter, the USG considers the stress test both appropriate and necessary to meet the 

requirement that the lANA transition should not yield a government-led or an intergovernmental 

replacement for NTIA's current stewardship role. 

Finally, we interpret the proposed stress test as capturing this important distinction in GAC advice, with 

an appropriate remedy in the form of a Bylaws amendment to reinforce the ICANN community's 

expectation that anything less than consensus is not advice that triggers the Bylaw provisions. 

In response, the new bylaws would enshrine the GAC's present full-consensus rule as the Q.Qjy way to 

trigger the board's obligation to "try and find a mutually acceptable solution." Several GAC members 

fiercely resisted this change, saying it interfered with government decision-making and reduced the role 

of governments. To overcome some of that resistance, we raised the threshold for ICANN's board to 

reject GAC's full-consensus advice, from today's simple majority (9 votes) to 60% (10 votes). 

This brings to mind the Feb-2015 hearing I the US Senate, where ICANN CEO Fadi Chehade was asked 

about a proposal to raise the rejection threshold to 2/3 of board votes. Chehade replied, "The Board 

has looked at that matter and has pushed it back, so it is off the table." It's true that a standalone 

proposal to raise the GAC rejection threshold was broadly opposed and set aside in late 2014. However, 

the proposed bylaw to increase the rejection threshold to 60% (1 additional vote) is an entirely different 

arrangement, since it reserves the higher threshold '2!!ft. for GAC advice adopted "by general agreement 

in the absence of any formal objection". This requirement prevents the GAC from generating privileged 

advice based on anything less than consensus, and more than justifies the addition of 1 more vote to 

reject that advice. 

If the board rejects GAC advice, it must still follow existing bylaws to "try, in good faith and in a timely 

and efficient manner, to find a mutually acceptable solution." This is an obligation to "try" and does not 

oblige ICANN to find a solution that is acceptable to the GAC. 

4 pp. 2~3, Annex 11- Recommendation #11: Board Obligations wlth Regard to Governmental Advisory Committee Advice {Stress 

Test #18), at https:ljwww .icann.org/en/system/files/flles/ccwg~accounta bi !ity~supp~proposal·work·stream·1-recs~23feb 16· 

en.pdf 

5 Email from suzanne Radell, Senior Policy Advisor, NT!A, 19·Mar-2015, at http://mm.icanr'!~Jg_ermail/accountabi!ity~cr~s~­

community/2015-March/001711.html 

5 
151 


Another imposition on GAC advice is a requirement that advice "is communicated in a clear and 

unambiguous written statement, including the rationale for such advice."6 And if ICANN's board 

accepted GAC advice that is inconsistent with ICANN Bylaws, the community can invoke the 

independent review process (IRP) to "ensure that ICANN does not exceed the scope of its limited 

technical Mission and otherwise complies with its Articles of Incorporation and Bylaws."' 

As one of the 7 Advisory Committees and Supporting Organizations that comprise the ICANN 

community, GAC was also invited to participate as a decisional participant of the Empowered 

Community. A few critics say that we should have excluded GAC from the community, but I cannot 

imagine that Congress or the Administration would accept an accountability structure where 

governments- including the US- have no seat at the table. National, state, and local governments 

maintain websites and services as domain name registrants, and many government employees are 

Internet users. Moreover, governments have a role among all stakeholders in developing public policy 

and enforcing laws that are relevant to the Internet. 

While GAC is rightfully an equal among ICANN stakeholders, the new bylaws ensure that governments 

could not block a community challenge of ICANN Board's implementation of GAC advice. In what is 

known as the "GAC Carve-out", the bylaws exclude the GAC from the community decision whether to 

challenge a board action based on GAC consensus advice. 

Several governments vigorously oppose these bylaws provisions to limit GAC influence and lock-in their 

consensus method of decision-making. In a statement issued Mar-2016, France's minister for digital 

economy complained about ICANN's new bylaws:' 

"Despite the continued efforts of civil society and many governments to reach a balanced compromise, 

elements of this reform project will marginalize States in the decision-making processes of ICANN, 

especially compared to the role of the private sector." 

Unnamed French foreign ministry officials also told Le Monde they were unhappy with the end result, 

saying: "This is an unsatisfactory condition. The consensus requirement only produces warm water. And 

that does not put the GAC on the same footing as the other committees of ICANN." 

The French official is right- the GAC is not on the same footing as other ICANN stakeholders. That, 

however, is by design. Notwithstanding criticism from certain governments, the full package of 

transition accountability measures sufficiently cabins governmental influence and fully meets NTIA's 

conditions for the transition. 

'20-Apr-2016, Section 12.3 of Draft New ICANN Bylaws, at https:Uwww.icann.org/en/system/files/files/proposed-new-bylaws20apr16-en.pdf 

7 Ibid, Section 4.3 a 8 24~Mar~2016, ''French scream sacre bleu! as US govt gives up the internet to ICANN", at 

http://www.theregister.eo.uk/2016/03/24/france slams us govt internet transition/ 

6 
152 


Question 3: Why the need to transition from the United States before the Accountability work stream 2 

is completed? With so much at stake and so many potential threats to the US economy, safety and 

security driven by potential bad actors on the internet ranging from the North Koreans, Chinese, 

Russians, and ISIS/ISIL, why risk this to a group of volunteers without accountability bock to the United 

States? 

As noted in my response to your first question, it's important to understand that ICANN coordinates 

only the Internet addressing system that we use to reach websites and route emails. Some cyber attacks 

might attempt to corrupt internet addressing systems, in which case ICANN would have a role in 

assessing, correcting, and preventing that kind of attack. While cyber attacks could use the addressing 

system, ICANN has no role in monitoring or intercepting internet traffic. 

In my response to your second question, I describe how the CCWG has cabined the power of 

governments to bring censorship or content control into the ICANN sphere of coordination. 

Over 18 years and three administrations, the US government has used light-touch oversight over ICANN. 

However, it is neither sustainable nor necessary for the US to retain its unique role forever. In fact, 

retaining this unique role increases the risk of Internet fragmentation and government overreach. At 

NTIA's request, the Internet community created proposals to let ICANN loosen ties to the US 

government and strengthen its accountability to the global Internet user community and keeping core 

Internet functions free from governmental control. 

At this point, a significant delay in this transition could create far more risks than rewards for the 

interests of US government, businesses, and citizens. 

Your third question suggests delaying the transition beyond the lANA contract expiration on 30-Sep2016, until Work Stream 2 tasks are all completed. We acknowledge that a modest delay could give 

more time to complete remaining implementation tasks and verify promised implementation by the 

ICANN Board. But an extended delay would create more risks and no significant benefits from the 

perspective of the US government, businesses, and citizens. 

One Work Stream 2 task has generated questions about whether ICANN might be pulled into potentially 

troubling enforcement obligations for human rights. NetChoice shared this concern with the first draft 

of Bylaws regarding the Work Stream 2 framework on human rights, so we support this amended Bylaw 

text: 

(viii) Subject to the limitations set forth in Section 27.3, within the scope of its Mission and other Core 

Values, respecting internationally recognized human rights as required by applicable law. This Core Value 

does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or 

beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its 

human rights obligations, or the human rights obligations of other parties, against such other parties. 

7 
153 


This proposed bylaws text would make it clear that ICANN will not become embroiled in enforcement of 

claims related to human rights, and should address this concern. 

Actually, there are several additional tasks in Work Stream 2, which will take the CCWG well into mid2017 to complete. 

However, the whole point of separating Work Stream 1 and 2 tasks was to identify what had to be 

implemented before the lANA contract expired, after which there would be very little leverage to force 

accountability measures that would be resisted by ICANN's board. Work Stream 1 includes new powers 

to block the board's budget, overturn a board decision, and to recall board directors. Those powers are 

deemed sufficient to force a future ICANN board to accept Work Stream 2 changes that are developed 

though community consensus. 

In other words, ICANN's new bylaws give the Empowered Community new powers to implement further 

reforms at any time. So the only way to evaluate all changes the community might pursue in the future 

is to delay the transition indefinitely. 

A long-term delay of transition would re-kindle the fire at the United Nations, where many governments 

have cited the US government role as the sole supervisor of ICANN and the lANA functions as an excuse 

to gain more control over the Internet/or themselves. 

With this transition we are eliminating the role where one government holds ICANN accountable, by 

moving to a structure where ICANN is accountable to a broad community of Internet 

stakeholders. After transition, the UN and ITU can no longer point to the US government role and say 

they should step into those shoes. 

An extended delay of transition would signal that the US government does not actually trust the multistakeholder model that we are encouraging China and other governments to trust. China's government 

would surely note our hypocrisy for criticizing them for failing to embrace domain registration policies 

developed by ICANN's multi-stakeholder community. 

Thank you for these questions. I am at your service to elaborate on these responses and address other 

questions and concerns you might have. 

8 
154 


FRED UPTON. MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

Dr. Alissa Cooper 

Chair 

ONE HUNDRED FOURTEENTH CONGRESS 

C!Congrt~~ of tbt Wntttb $tate~ 

,i!)ouS't of l\epreS'entatitltS' 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 

Majority i202} 225-2927 

Minonty \202) 225··3641 

AprilS, 2016 

lANA Stewardship Transition Coordination Group 

80 l Church Street 

Mountain View, CA 94041 

Dear Dr. Cooper: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: ( 1) the name ofthe 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, April 22, 2016. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
155 


Answers to Questions for the Record 

Dr. Alissa Cooper 

Chair, lANA Stewardship Transition Coordination Group (ICG) 

The Honorable Greg Walden 

1. The GAC neither approved nor objected to the transition proposal. Which 

governments had reservations about the transition plan? 

The transition package is comprised of two plans, one concerning the operational 

aspects of the lANA stewardship transition ("the lANA Stewardship Transition 

Proposal"), and the other concerning enhancements to the accountability of the Internet 

Corporation for Assigned Names and Numbers (ICANN). As chair of the lANA 

Stewardship Transition Coordination Group (ICG), my answer is in the context of the 

lANA Stewardship Transition Proposal. 

The transition proposal achieved broad community support as demonstrated in multiple 

public comment periods, including the ICG's own solicitation of public comments. The 

ICG did not seek specific approval from individual supporting organizations or advisory 

committees such as the GAC, relying instead on those groups' ICG representatives to 

reflect the groups' views back to the ICG. There were five GAC members appointed to 

the ICG and the transition proposal was unanimously supported by ICG members, 

including the GAC members. 

During its public comment period, the ICG received comments on the proposal from a 

number of governments and government representatives, including Turkey, Brazil, the 

United Kingdom, India, Japan, Colombia, Mexico, New Zealand, Sweden, the European 

Commission, Denmark, and Korea. The full archive of public comments received is 

available at: https:/lwww.ianacg.org/calls-for-input/iana-stewardship-transition-proposalpublic-archive-of-su bmitted-comments/. 

The Honorable Renee Ellmers 

1. ICANN is a global organization to provide policy and protection for all citizens 

throughout the world. As threats to our nation's cybersecurity increasingly grow 

more frequent and more complex, without accountability to the United States, how 

can we ensure that the leadership inside ICANN would not be unduly influenced or 

implement policy that could negatively impact every company and individual in 

the United States who rely upon fair and open access of the internet each and 

every day? For example, the staff of ICANN make decisions every day impacting 

companies and their very business models such as how to implement policy 

relating to the new gTLD program or enforcing requirements that protect people 

from bad actors using domain names or web sites to cause harm to others. 

This question primarily concerns the component of the transition package concerning 

enhancements to ICANN accountability. As chair of the lANA Stewardship Transition 
156 


Coordination Group (ICG), my answer refers to the other component, the lANA 

Stewardship Transition Proposal. 

The transition proposal includes appropriate and properly supported independent 

accountability mechanisms for running the lANA functions. It relies primarily on the right 

of each operational community to change operators for the performance of the lANA 

functions within their purview. This means that if the communities that rely on lANA are 

unsatisfied with the performance of the lANA functions, they can choose to take their 

business elsewhere. This provides a strong check against any behavior that lANA may 

consider undertaking that would have a negative impact on the communities that rely on 

the lANA functions, including U.S. companies and individuals. 

The operational communities are composed of individuals, businesses, non-profit 

organizations and technical experts to whom Internet security and stability are vitally 

important. These communities, not ICANN staff, are empowered to make the basic 

policy decisions that the lANA functions operator is charged with implementing. By 

enhancing existing accountability mechanisms and introducing new ones, the transition 

proposal actually gives interested parties a greater ability to hold lANA to established 

performance standards than they have today. 

2. The transition plan asks for the U.S. government to place trust in an 

organization governed by volunteers who self-select leaders rather than elect or 

appoint leaders. In some cases leaders may or may not be qualified, and in some 

cases may clearly have financial or other interests influencing their decision 

making and approach to developing policy for everyone. When the internet is so 

central to how our people and companies live and thrive, can we really simply 

trust that this will be done fairly and appropriately, particularly given the political 

volatility in today's climate? What safeguards can we instill to insure fair 

decisions for all? 

It is not the case that the lANA transition or the transition plan have created a new 

requirement for anyone, including the U.S. government, to trust groups of volunteers to 

ensure the smooth functioning of the Internet. In fact, this is how the Internet has been 

operating for decades. The Internet works because of voluntary cooperation among 

engineers, network operators, equipment manufacturers and users. The U.S. 

government and all other Internet users have already been relying on the voluntary 

cooperation of individuals and companies all over the world whose joint work has helped 

the Internet to thrive. This is the work of experienced professionals, many of whose 

businesses and livelihoods depend on the proper functioning of lANA. 

The key strength of the transition proposal is that it provides continuity with how the 

Internet already operates. The processes and structures developed and used to keep 

the Internet running smoothly over the past 30 years have proven their robustness, even 

as the Internet has grown and evolved. The transition plan merely takes the safeguards 

that have existed for years -the use of transparent, public proceedings for all decisions; 

consensus-based decision-making that never defaults to voting or campaigning; 

established appeals processes; and the ability to recall or replace under-performing 

members of the leadership - and strengthens them. 

2 
157 


3. Why the need to transition from the United States before the Accountability 

workstream 2 is completed? With so much at stake and so many potential threats 

to the US economy, safety and security driven by potential bad actors on the 

internet ranging from the North Koreans, Chinese, Russians and ISIS/ISIL, why 

risk this to a group of volunteers without accountability back to the United States? 

The ICANN Accountability Work Stream 1 includes the provisions that the global 

multistakeholder community deemed necessary to complete the lANA stewardship 

transition. By its very definition, Work Stream 2 was created to consider work that did not 

need to be concluded before the transition took place. The Internet and the 

organizations involved in ensuring its smooth operation are always evolving, and Work 

Stream 2 provides one path to continue that evolution at ICANN after the transition 

completes. Gradual introduction of enhancements will reduce any tendency to create 

instability from making too many changes at a single point in time. 

Those involved in the global Internet community are, in fact, accountable. Indeed, the 

main goal of the transition proposal development process was to specify how all 

interested parties, including the U.S. government, would be able to hold lANA and 

ICANN accountable going forward. The ICG believes that the proposal meets that goal. 

Security was a particular focus during the proposal development process. The transition 

proposal maintains the security of the domain name system by introducing minimum 

change and by keeping the current lANA functions operation team intact and carrying 

out the same role that it has today. The proposal sustains and enhances procedures for 

identifying and rectifying any potential performance degradations that may arise in the 

provision of the lANA functions. Broadening oversight over lANA means that there will 

be more attention devoted to the impact of the lANA functions on Internet security going 

forward, not less. Finally, removing the manual procedural checks that NTIA currently 

performs simplifies the change process for the root zone of the DNS, creating a more 

streamlined and stable process. 

3 
158 


FRED UPTON, MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

ONE HUNDRED FOURTEENTH CONGRESS 

cteongte!)!) of tbe llniteb $tate!) 

1!>ou~e of l\epresentatibes 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 Majority (202} 225·-2927 

Minority (202) 225··3641 

AprilS, 2016 

Ms. Sally Shipman Wentworth 

Vice President, Global Policy Development 

Internet Society 

1775 Wiehle Avenue 

Reston, VA 20190 

Dear Ms. Shipman Wentworth: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, April 22, 20 J 6. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
159 


Attachment- Additional Questions for the Record 

Internet Society's Response to the Questions of 

The Honorable Renee Ellmers 

1. ICANN is a global organization to provide policy and protection for all citizens 

throughout the world. As threats to our nation's cybersecurity increasingly 

grow more frequent and more complex, without accountability to the United 

States, how can we ensure that the leadership inside ICANN would not be 

unduly influenced or implement policy that could negatively impact every 

company and individual in the United States who rely upon fair and open 

access of the Internet each and every day? For example, the staff of ICANN 

make decisions every day impacting companies and their very business models 

such as how to implement policy relating to the new gTLD program or 

enforcing requirements that protect people from bad actors using domain 

names or web sites to cause harm to others. 

While this question is specific to ICANN, I think it is important to respond first to 

the broader question as relates to the lANA transition. 

Each of the three lANA functions is associated with a particular community that 

has a direct operational or service relationship with the lANA functions 

operator-specifically, the Internet Engineering Task Force (IETF) for protocol 

parameters, the Regional Internet Registries (RIRs) for number allocations, and 

the Internet Corporation for Assigned Names and Numbers (ICANN) community 

for names. These communities have often been referred to as the "operational 

communities" or "directly affected parties" and it is these communities that 

define the policies for the values that lANA keeps track of. As part of the lANA 

transition process, each community has reviewed its own processes to ensure 

that they are open, transparent, accountable and not subject to capture by any 

one stakeholder or stakeholder group. 

ICANN, specifically, has two different but inter-related roles for which it is 

responsible in the current operations of lANA. The first relates to policy 

development for Internet domain names and the second is the performance of 

the lANA functions by the lANA Department within ICANN. 

Policy development for domain names - both for gTLDs and ccTLDs - is not done 

by ICANN staff, by its leadership or its Board of Directors. Rather the policies are 

formed by ICANN's multistakeholder global community, which includes 

governments, businesses, civil society advocates and the technical community all 

participating through ICANN's Supporting Organizations and Advisory 

1 of3 
160 


Committees. The transition proposal related to ICANN accountability 

strengthens the role of the community and helps ensure that ICANN remains 

fully accountable to its community. 

Similarly, policy development related to protocol parameters and IP addresses 

are set by the relevant operational communities- the Internet Engineering Task 

Force (IETF) and the Regional Internet Registries (RIRs). The implementation of 

those policies is carried out by the lANA Department of ICANN. Importantly, 

under the proposed plan, each operational community will have a contractual 

relationship with the lANA functions operator; therefore, each operational 

community will have the right to select a new entity for the performance of the 

lANA functions as a last resort. 

Thus, from an operational perspective, the final transition proposal maintains an 

important separation between policy development and implementation for the 

lANA functions, which is key in ensuring the overall stability and resiliency of the 

Internet and to avoiding capture. 

2. The transition plan asks for the U.S. government to place trust in an 

organization governed by volunteers who self-select leaders rather than elect 

or appoint leaders. In some cases leaders may or may not be qualified, and in 

some cases may clearly have financial or other interests influencing their 

decision making and approach to developing policy for everyone. When the 

internet is so central to how our people and companies live and thrive, can we 

really simply trust that this will be done fairly and appropriately, particularly 

given the political volatility in today's climate? What safeguards can we instill 

to insure fair decisions for all? 

The Internet is an open ecosystem of individuals and organizations that fulfill 

their missions through a framework of mutual trust and collaboration. The lANA 

transition proposal does not change the way the Internet has been operating for 

the past 30 years- in fact, voluntary, bottom up decision making has been the 

hallmark of the Internet since its earliest days. 

The Internet's original design and the processes that were put in place by the 

various communities to support this design have proven their resiliency and 

robustness. Simply put, the transition plan takes these well-documented 

practices and safeguards- the communities' accountability mechanisms, the 

consensus-based decision-making model, the transparency of discussions and 

the collaboration and coordination between Internet institutions- and enhances 

them. 

2 of3 
161 


3. Why the need to transition from the United States before the Accountability 

workstream 2 is completed? With so much at stake and so many potential 

threats to the US economy, safety and security driven by potential bad actors 

on the internet ranging from North Koreans, Chinese, Russians and ISIS/ISIL, 

why risk this to a group of volunteers without accountability back to the 

United States? 

NTIA's original intent to transition key domain name system (DNS) and technical 

coordination functions- the lANA functions- away from the U.S. Government 

was outlined in the 1998 Statement of Policy "Management of Internet Names 

and Addresses". The development of this policy statement was guided by 

consultations and public input, including over 430 written comments (amounting 

to some 1,500 pages) from public and private sector stakeholders around the 

world. 

As part of the transition of the lANA functions, the NTIA requested that issues of 

ICANN's accountability be addressed. For the past two years, the global 

multistakeholder community has been working towards an accountability 

framework that would ensure the lANA functions continue to operate under a 

predictable, stable and secure way. This process was characterized as Work 

Stream 1 and its recommendations were submitted to the NTIA last month along 

with the lANA Transition proposal. In short, this process has always been about 

transitioning the lANA functions and not simply about ICANN. 

Regarding Work Stream 2, it is a process that is not related directly to lANA or its 

operations. It rather relates directly to ICANN as a corporation. It is a longer 

process and it is meant to deal with issues of corporate governance and the 

potential restructuring of the way a corporation operates. Notwithstanding its 

significance for ICANN and its community, it is not directly related to the 

operation of lANA or the Internet in general. Given that the Internet will 

continue to grow and evolve over time, it is important that all organizations, 

including ICANN, continue to evolve in order to ensure that they meet the needs 

and expectations of their communities. 

3 of3 
162 


FRED UPTON, MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

Ms. Audrey Plonk 

Director 

ONE HUNDRED FOURTEENTH CONGRESS 

ctJ:ongrc~~ of tbc ~nitd.l ~tate~ 

J!)ouse of l\epresentatt\Jes 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 Majorlty {202) 225-2927 

Minon!y \202) 225-3641 

AprilS, 2016 

Global Security and Internet Governance Policy 

Intel Corporation 

2200 Mission College Boulevard 

Santa Clara, CA 95054 

Dear Ms. Plank: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (1) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing ofthe hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, April22, 2016. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

J\c;;J4A_ 

/(lgWalden 

Chairman 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
163 


FRED UPTON, MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

ONE HUNDRED FOURTEENTH CONGRESS 

(!Congress of tbt Wntttb $tates 

~ouse of l\epresentatibes 

COMMITIEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 

Mr. Matthew Shears 

Representative and Director 

Majority {202}225··2927 

Minority {202) 225-3641 

AprilS, 2016 

Global Internet Policy and Human Rights Project 

Center for Democracy and Technology 

1634 I Street, N.W. 

Washington, DC 20006 

Dear Mr. Shears: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, April22, 2016. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
164 


CENTER FOR 

DEMOCRACY 

& TECHNOLOGY 

Additional questions for the record 

March 17, 2016, Subcommittee on Communications and Technology hearing "Privatizing the 

Internet Assigned Number Authority'' 

Responses of Matthew Shears, Director Global Internet Policy and Human Rights, Center for 

Democracy & Technology (COT} 

The Honorable Renee Ellmers 

1. ICANN is a global organization to provide policy and protection for all citizens 

throughout the world. As threats to our nation's cybersecurity increasingly grow more 

frequent and more complex, without accountability to the United States, how can we 

ensure that the leadership inside ICANN would not be unduly influenced or implement 

policy that could negatively impact every company and individual in the United States 

who rely upon fair and open access of the Internet each and every day? For example, 

the staff of ICANN make decisions every day impacting companies and their very 

business models such as how to implement policy relating to the new gTlD program or 

enforcing requirements that protect people from bad actors using domain names or 

web sites to cause harm to others. 

From the very beginning of the work on developing the accountability mechanisms, 

NTIA's criteria have guided the work ofthe multistakeholder community. It is worth 

noting that the criteria of both supporting and enhancing the multistakeholder 

model, and meeting the needs and expectations of the global customers and 

partners of the lANA services, have provided essential guidance. The accountability 

measures that have been put in place reinforce the role of the multistakeholder 

community and the customers of the lANA functions, and place important checks on 

the organization's mission and the powers of the ICANN Board. The accountability 

measures are also designed to ensure that no one party can take actions that are 

outside ICANN's mission or that could impact ICANN, the lANA functions or the DNS. 

Post-transition accountability will reside with the empowered ICANN 

multistakeholder community in which the significant US interests in the DNS and its 

continued stability and security are very capably represented across all stakeholder 

groupings. 
165 


2. The transition plan asks for the U.S. government to place trust in an organization 

governed by volunteers who self-select leaders rather than elect or appoint leaders. In 

some cases leaders may or may not be qualified, and in some cases may clearly have 

financial or other interests influencing their decision making and approach to 

developing policy for everyone. When the Internet is so central to how our people and 

companies live and thrive, can we really simply trust that this will be done fairly and 

appropriately, particularly given the political volatility in today's climate? What 

safeguards can we instill to insure fair decisions for all? 

The ICANN community has been developing policies for the Domain Name System 

(DNS) since 1998. It is comprised of experienced and professional individuals from 

across the stakeholder groupings all of whom are committed to the stability, security 

and resiliency of the Internet. The United States Government's role has been 

effectively hands off, entrusting the Internet to this community. This community 

operates through a multistakeholder model that is a powerful construct for ensuring 

that decisions do not merely reflect the views of one particular stakeholder. The 

changes to the bylaws that will be implemented as a result of the work to enhance 

ICANN's accountability will ensure that the views of the community are heard and 

that ICANN is accountable to the global multistakeholder community. 

3. Why the need to transition from the United States before the Accountability 

workstream 2 is completed? With so much at stake and so many potential threats to 

the US economy, safety and security driven by potential bad actors on the Internet 

ranging from the North Koreans, Chinese, Russians and ISIS/ISIL, why risk this to a 

group of volunteers without accountability back to the United States? 

Post transition, ICANN will be accountable to its community and the broader 

multistakeholder community. Within !CANN, the United States Government will 

continue to play a prominent role in the Government Advisory Committee, just as 

representatives of US businesses, technical bodies and civil society organizations will 

continue to play prominent roles in their respective parts of the community. When 

work on the transition was initiated it was decided that measures to enhance 

ICANN's accountability, empower its community and strengthen the 

multistakeholder model needed to be put in place before the United States 

Government could step back from its role in the DNS. These measures were, rightly, 

determined to be essential to the transition. The accountability measures in Work 

Stream 2 were not considered essential to be in place prior to the transition but 

were deemed important enough to ICANN's future to have work carry on posttransition. 

2 
166 


FRED UPTON, MICHIGAN 

CHAIRMAN 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

ONE HUNDRED FOURTEENTH CONGRESS 

cteongre~~ of tbe Wntteb $tate~ 

j!}ou~e of l\epre~entatibe~ 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 Majo1ity (202) 225-2927 

Minonty !202) 225-·3641 

AprilS, 2016 

The Honorable David A. Gross 

Former U.S. Coordinator 

International Communications and Information Policy 

Wiley Rein LLP 

1776 K Street, N.W. 

Washington, DC 20006 

Dear Ambassador Gross: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

Thursday, March 17, 2016, to testifY at the hearing entitled "Privatizing the Internet Assigned Number 

Authority." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, April 22, 2016. Your responses should be mailed to 

Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Greg. Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo, Ranking Member, Subcommittee on Communications and Technology 

Attachment 
167 


March 17,2016, Subcommittee on Communications and Technology hearing "Privatizing 

the Internet Assigned Number Authority" 

Responses of David A. Gross to Questions for the Record 

The Honorable Greg Walden 

1. What were the concerns expressed by the governments in the GAC meetings in 

Marrakech? 

At the ICANN meeting in Marrakech, some governments did express concerns regarding 

the accountability proposal put forth by the Cross Community Working Group on Enhancing 

ICANN Accountability (CCWG-Accountability). Among the issues discussed by governments 

were the appropriate role of governments regarding the ICANN multistakeholder community, as 

well as certain mechanisms proposed by the CCWG-Accountability that were perceived by some 

governments as limiting the GAC's ability to participate in the ICANN community on equal 

terms with other stakeholders. Appendix A to the CCWG-Accountability report included a 

Minority Statement by Olga Cavalli, Argentina's representative on the GAC, who also 

represented the GAC on the CCWG-Accountability. Her statement was supported by the 

governments of Argentina, Benin, Brazil, Chile, Commonwealth of Dominica, France, Guinea, 

Mali, Nigeria, Paraguay, Peru, Portugal, Russian Federation, The Democratic Republic of 

Congo, Uruguay, and Venezuela. Some of the concerns raised by governments at Marrakech 

echo the themes of this statement. For ease of access, her minority statement that was included 

with the CCWG-Accountabi!ity report is appended. 

To provide a more complete answer to the question regarding the concerns expressed by 

governments in the GAC meetings in Marrakech, it is helpful to review the transcripts of each of 

the GAC meetings from ICANN 55 in Marrakech that are available on ICANN's website. In 

particular, on the morning of Sunday, March 5, 2016, the GAC discussed in detail 

Recommendation 11 of the CCWG-Accountability report, which addresses how the ICANN 

Board should respond to GAC Recommendations. The transcript of that particular discussion is 

available at: https://meetings.icann.org/en/marrakech55/schedule/sun-gac-morning/transcriptgac-morning-06mar 16-en. 

In addition, there also were extensive discussions about the lANA Stewardship Transition 

and the Enhancing ICANN Accountability proposals at a GAC High Level Government Meeting 

held on Monday, March 7, 2016. The transcript of that meeting can be found at: 

https://meetings.icann.org/en/marrakech55/schedule/mon-gac-hlgm/transcript-gac-hlgm07mar 16-en. 

On the afternoon of Tuesday, March 8, the GAC further discussed the Accountability 

report. The transcript of that meeting can be found at: 

https://meetings.icann.org/en/marrakech55/schedule/tue-gac-afternoon/transcript-gac-afternoon08marl6-en. 

Members of the GAC discussed the lANA Stewardship Transition and the proposal for 

Enhancing ICANN Accountability at various other GAC meetings as well. Links to the 

transcripts for each meeting, as well as audio recordings of their proceedings, are available via 
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the schedule of events from ICANN 55. See: 

https://meetings.icann.org/en/marrakech55/schedule-full 

2. What would have to occur for the governments involved in ICANN to effectuate 

major changes such as the ICANN mission or the location of its principle place of 

business? 

Under the framework proposed in the CCWG-Accountability report, it would be 

extraordinarily difficult for governments to force these major changes without the consent and 

agreement of a substantial portion of ICANN's multistakeholder community. The CCWGAccountabil ity proposal necessitates multiple layers of approval, and various checks and 

balances will be added to prevent one stakeholder group, including governments, from 

engineering major changes to ICANN's mission and core activities. 

In general, governments can influence Board decisions through the GAC, which can issue 

"advice" that in some instances is binding on the Board. Should the GAC issue advice to the 

ICANN Board by consensus (understood to mean the practice of adopting decisions by general 

agreement in the absence of any formal objection by any government, including by the United 

States), the advice only can be rejected by a 60 percent vote of the Board. Put differently, in 

order for governments to dictate Board action, first they would need to obtain consensus 

(unanimous agreement) through the GAC, an organization in which the United States and other 

like-minded countries take an active role. Thereafter, any advisory decision still could be 

rejected by a 60 percent vote of the Board. 

After the CCWG-Accountability proposal is implemented, changes to the ICANN 

mission, and some other major actions, would require alteration to Fundamental Bylaws, which 

could be accomplished only through cooperation between the ICANN Board and the 

"Empowered Community." Here, the threshold of Board approval required is even greater: 75 

percent of the Board must approve the change. Moreover, Board activity alone would not be 

sufficient-changes to Fundamental Bylaws also require approval by the Empowered 

Community, and a public consultation process. The GAC can participate as one Decisional 

Participant among many in the Empowered Community. Importantly, however, the GAC is 

barred from participating in an Empowered Community decision challenging ICANN Board 

action performed pursuant to a GAC advisory decision. 
169 


The Honorable Renee Ellmers 

1. ICANN is a global organization to provide policy and protection for all citizens 

throughout the world. As threats to our nation's cybersecurity increasingly grow 

more frequent and more complex, without accountability to the United States, how 

can we ensure that the leadership inside ICANN would not be unduly influenced or 

implement policy that could negatively impact every company and individual in the 

United States who rely upon fair and open access of the Internet each and every 

day? For example, the staff of ICANN make decisions every day impacting 

companies and their very business models such as how to implement policy relating 

to the new gTLD program or enforcing requirements that protect people from bad 

actors using domain names or web sites to cause harm to others. 

The CCWG-Accountability process took account of such concerns. In essence, the 

framework established by the CCWG-Accountability is intended to prevent any stakeholder 

group or individual from taking unilateral action that could compromise the security, stability, 

and reliability of the Internet. Even after the lANA Stewardship Transition, the United States 

government is expected to participate actively in the GAC. Moreover, the interests of U.S. 

businesses, the technical community, civil society, and others are well-represented through 

various organizations and committees making up ICANN's Empowered Community, which 

retains the ability to challenge ICANN Board decisions and even demand the recall of the entire 

Board. 

2. The transition plan asks for the U.S. government to place trust in an organization 

governed by volunteers who self-select leaders rather than elect or appoint leaders. 

In some cases leaders may or may not be qualified, and in some cases may clearly 

have financial or other interests influencing their decision making and approach to 

developing policy for everyone. When the Internet is so central to how our people 

and companies live and thrive, can we really simply trust that this will be done fairly 

and appropriately, particularly given the political volatility in today's climate? 

What safeguards can we instill to insure fair decisions for all? 

Probably the best safeguard is robust participation in and support for the multistakeholder 

community. The framework established in the CCWG-Accountability report provides various 

mechanisms to ensure that the decisions ofiCANN's leadership should reflect the will of the 

ICANN community and are consistent with ICANN's bylaws and mission. 

3. Why the need to transition from the United States before the Accountability 

workstream 2 is completed? With so much at stake and so many potential threats to 

the US economy, safety and security driven by potential bad actors on the Internet 

ranging from the North Koreans, Chinese, Russians and ISISIISIL, why risk this to 

a group of volunteers without accountability back to the United States? 

The Cross Community Working Group on Enhancing ICANN Accountability (CCWGAccountability) divided its recommendations into two categories. Work Stream I mechanisms 

were defined as those that, when in place or committed to, would provide the community with 

confidence that any accountability mechanisms necessary to enhance ICANN's accountability 
170 


within the timeframe of the lANA Stewardship Transition would be implemented if it had 

consensus support from the community, even if it were to encounter ICANN management 

resistance or if it were against the interest ofiCANN as a corporate entity. Work Stream 2 is 

focused on addressing those accountability topics for which a timeline for developing solutions 

may extend beyond the lANA Stewardship Transition. Some of the enhancements considered 

for Work Stream 2 are of the nature of continuing improvements that may be worked on 

iteratively (e.g., improving ICANN's standards for diversity at all levels), and therefore it would 

be impractical to wait until they are "completed" to perform the lANA stewardship transition. 

Others, while important, may not be essential to an orderly, secure, and stable lANA transition 

(e.g., considering enhancements to the Ombudsman's role and function). 

Work Stream I is comprised of those items that were deemed by the CCWGAccountability as essential to be resolved prior to the lANA stewardship transition. This 

includes enhancements to the community's ability to review ICANN's activities, to reject 

unfavorable changes to ICANN's bylaws, and to remove Board members or reject certain Board 

decisions. Changes of this sort were necessary in order for the community to feel confident in 

lCANN's continued ability to perform its critical role in an independent and representative way. 

By comparison, the remaining Work Stream 2 items were not seen by the CCWG as essential to 

a successful lANA transition, but rather as further improvements to ICANN's processes. 
171 


Consensus 

1s Minority Statement by Olga Cavalli 

20 CCWG-Accountability Member, GAC 

21 Dear co-chairs, 

22 After many months of hard work, CCWG has delivered a final proposal to be accepted by the 

community and then submitted to the ICANN board and NTIA. The negotiations leading to the 

delivery of this proposal have been very intense, and sometimes disappointing. More specifically, 

the attempts of some stakeholders to take advantage of the lANA transition in order to reduce the 

ability of governments to be part of the - to be enhanced - community, have jeopardized the 

success of the overall process, and more broadly, have put at risk our trust in what has brought 

us all here in the first place: the multi-stakeholder approach. 

23 The role of governments in the multi-stakeholder community 

24 The idea that governments threaten the multi-stakeholder community or benefit from a "special 

status" in the current ICANN structure is a misconception: 

Governments only have an advisory role in ICANN, through the Governmental Advisory 

Committee (GAC), whereas other constituencies exercise a decisional role, for instance 

through the drafting of policy recommendations. 

Governments do not participate in the ICANN Nominating Committee (NomCom) for the 

selection of ICANN's leadership positions in the Board, ccNSO, GNSO and ALAC, unlike 

other AC/SOs within ICANN. 

Governments do not participate to the ICANN board, whereas all other AC/SOs can elect 

members of the board, directly and through the Nominating Committee. GAC can only 

appoint a non-voting liaison to the board. 

The ICANN board can easily reject GAC advice, even if the advice was approved without 

any formal objection. If "the ICANN board determines to take an action that is not 

consistent with the Governmental Advisory Committee advice" and fails to "find a mutually 

acceptable solution" (an obligation which does not only apply to GAC advice'), then the 

only obligation of the board is to "state in its final decision the reasons why the 

Governmental Advisory Committee advice was not followed"'. On the other hand, a PDP 

approved by 66% of GNSO can only be rejected by a 213 majority of the board'. 

25 On the contrary, we believe that governments are an essential part of the community: 

GAC is the most geographically diverse entity in the community. This element should not 

be underestimated, given that the internationalization of ICANN has been a recurring 

issue since its inception in 1998. 

Governments bring a unique perspective on public policy issues and remain the most 

legitimate stakeholders when it comes to protecting public interest. 

6 ICANN Bylaws, Annex B, Section 15.b: "The Board shall adopt the ccNSO Recommendation unless by a vote of more 

than 66% the Board determines that such policy is not in the best interest of the ICANN community or of ICANN. ( ... ).The 

Council shall discuss the Board Statement with the Board within thirty days after the Board Statement is submitted to the 

Council. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and 

Board shall discuss the Board Statement. The discussions shall be held in good faith and in a timely and efficient manner, 

to find a mutually acceptable solution,~ 

7 ICANN Bylaws, Article XI, Section 2. 8 ICANN Bylaws, Annex A, Section 9: "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be 

adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is 

not in the best interests of the ICANN community or !CANW' 

25 February 2016 
172 


Consensus 

• An ICANN with no or very little governmental involvement would be even more subject to 

a risk of capture by special interests or narrow corporate interests. 

2s Proposed solutions to the so-called Stress-Test 18 leading to changes in 

Recommendation 1, 2 and 11 

21 In particular, we are extremely disappointed by and object to the latest "compromise" solution 

regarding Stress Test 18-related issues, which led to changes in Recommendations 1, 2 and 11. 

2s According to the "CCWG-Accountability Supplemental Final Proposal on Work Stream 1 

Recommendations", Stress Test 18 "considers a scenario where ICANN's GAC would amend its 

operating procedures to change from consensus decisions (no objections) to majority voting for 

advice to the ICANN Board". In this scenario, GAC would therefore align its decision-making 

process to what is already the rule for ALAC, GNSO and CCNSO. However, some CCWG 

participants seem to believe that preventing GAC from adopting the decision making process 

used by other stakeholders is necessary to make ICANN more accountable. 

29 Many rationales were circulated to justify Stress Test 18-related measures, including ones that 

involved NTIA. However, the proposed solutions to the issues raised by Stress Test 18 were 

never part of the initial conditions required for the acceptance of the lANA transition by NTIA. In 

March 2014, when NTIA announced the transition, four principles were singled out: 

Support and enhance the multi-stakeholder model; 

Maintain the security, stability, and resiliency of the Internet DNS; 

Meet the needs and expectation of the global customers and partners of the lANA 

services; 

• Maintain the openness of the Internet. 

30 In its press release, NTIA also stated it would "not accept a proposal that replaces the NTIA role 

with a government-led or an inter-governmental organization solution". To our knowledge, the 

current ICANN structure does not qualify as a government-led organization, especially since the 

governments only have an advisory role, through the Governmental Advisory Committee. 

Therefore, status quo would meet the NTIA requirements. 

31 Despite the strong concerns of many governments regarding the proposed solutions to Stress 

Test 18, and their doubts about the impact of such solutions on ICANN's accountability, GAC has 

agreed to a consensus package during the Dublin meeting, as reflected in the Dublin GAC 

Communique, showing its willingness to reach a compromise in order to achieve the lANA 

transition. This compromise was based, inter alia, on a 2/3 threshold for the ICANN board to 

reject GAC advice and on the preservation of GAG's autonomy in defining consensus. 

32 Recommendation 11 of the 3rd CCWG report proposed a very narrow definition of consensus, as 

"general agreement in the absence of any formal objection", which represented a major shift from 

the principles agreed in the GAC Dublin communique, therefore triggering the rejection of 

Recommendation 11 by some GAC members. However, the 3rd draft report proposed a 2/3 

threshold for the board to reject GAC consensus advice, aligned with the GAC Dublin 

Communique. 

33 The "compromise" solution proposed in the "CCWG-Accountability Supplemental Final Proposal 

on Work Stream 1 Recommendations" published in February is as follows: 

Maintain a very narrow definition of consensus as "the absence of any formal objection"; 

• Set the threshold for board rejection of GAC full consensus advice at 60% instead of 2/3; 

25 February 2016 6 
173 

Æ 


Consensus 

Limit the ability of GAC to participate in the empowered community mechanisms if they 

aim at challenging the board's implementation of GAC advice - this proposal has never 

been discussed in CCWG before, and hardly relates to the initial issues raised by Stress 

Test 18. 

34 We fail to understand how these new proposals address the concerns expressed by many GAC 

members in the public comment period, for instance relatively to the ability of one government to 

block a draft advice approved by an overwhelming majority of governments. Even though 

consensus should remain the GAG's ultimate objective, the requirement to reach full consensus 

for each and every issue considered might lead, in some cases, to paralysis. Any hypothetical 

advice reflecting less than full consensus (including 100% minus one- which in our view would 

be basically as representative as full consensus) could indeed be dismissed by a simple majority 

vote of the board. As a result, the ability of GAC to participate to a discussion considered as 

relevant by most of its members would be very limited and decisions could theoretically be made 

without any significant GAC input. To prevent this, we believe governments shall not be bound by 

one single rule of decision-making, particularly if potentially controversial topics are to be 

considered 

35 We note that GAC is once again asked to lower its ability to be involved in the post-lANA 

transition ICANN. Regarding the ability of GAC to participate in the empowered community 

mechanisms, we believe such a decision should be carefully reviewed and should not be 

imposed under pressure in a very short timeframe. More specifically: 

• We do not understand why the "two bites at the apple" problem should only apply to GAC, 

and not to all SO/ACs which could participate in a community power challenging the 

board's implementation of their advice or policy recommendation. 

It is GAG's sole responsibility to determine if it wishes to participate in a decisional 

capacity to the community mechanisms. 

It would be contradictory to limit GAG's ability to participate to the community powers only 

to those cases involving public policy /legal aspects, while preventing GAC to participate 

to community powers involving the board's implementation of its advice. 

36 Governments have shown impressive flexibility and tried to reach a compromise in many ways, 

as reflected in the Dublin GAC communique. However, only the demands of part of the 

community representatives were met, at the expense of GAC; therefore, rather than 

"compromise", "winner takes all" would actually be a more accurate description of what is 

proposed in the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 

Recommendations. 

37 Olga Cavalli 

38 This statement is supported by the governments of Argentina, Benin, Brazil, Chile, 

Commonwealth of Dominica, France, Guinea, Mali, Nigeria, Paraguay, Peru, Portugal, Russian 

Federation, The Democratic Republic of Congo, Uruguay, Venezuela 

25 February 2016