The Future of Internet Governance: Should the United States Relinquish Its Authority over ICANN?
Released: 2016-09-01T00:00:00

Background: The Domain Name System and the Role of the U.S. Government

The Internet is often described as a "network of networks" because it is not a single physical entity, but hundreds of thousands of interconnected networks linking hundreds of millions of computers around the world. As such, the Internet is international, decentralized, and comprised of networks and infrastructure largely owned and operated by private sector entities.

Computers connected to the Internet are identified by a unique Internet Protocol (IP) number that designates their specific location, thereby making it possible to send and receive messages and to access information from computers anywhere on the Internet. Domain names were created to provide users with a simple location name, rather than requiring them to use a long list of numbers. The domain name system (DNS) is the distributed set of databases residing in computers around the world that contain the address numbers, mapped to corresponding domain names. Those computers, called root servers, must be coordinated to ensure connectivity across the Internet.

The U.S. government has no statutory authority over the DNS. However, because the Internet evolved from a network infrastructure created by the Department of Defense, the U.S. government originally funded and operated (primarily through private contractors) many of the key components of the network architecture that enabled the domain name system to function. In 1998, with the Internet expanding beyond the academic and governmental spheres, the U.S. government transitioned the management of the DNS to a newly created not-for-profit international organization based in California called the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN employed (and continues to employ) a multistakeholder system of governance whereby policy decisions are made by a Board of Directors with input from the various stakeholder groups that comprise the Internet and the domain name system. These stakeholders include owners and operators of servers and networks around the world, domain name registrars and registries, regional IP address allocation organizations, standards organizations, Internet service providers, local and national governments, noncommercial stakeholders, business users, intellectual property interests, and others.

After the 1998 transition, the U.S. government, through the Department of Commerce's National Telecommunications and Information Administration or NTIA, retained a degree of authority over ICANN's management of the DNS and other unique Internet identifiers such as Internet address numbers and protocols. With respect to ICANN, the U.S. government first exercised its legacy authority through a Memorandum of Understanding (1998-2006), followed by a Joint Project Agreement (2006-2009). Currently, NTIA and ICANN are joint participants in an Affirmation of Commitments (AoC) agreement, in which both parties agree to scrutiny and evaluation by review boards. The AoC is voluntary, and either ICANN or NTIA can withdraw from the agreement at any time.

Concurrently, a separate contract between the ICANN and NTIA—specifically referred to as the "IANA functions contract"—authorizes ICANN to manage the technical underpinnings of the domain name system (DNS). The IANA functions can be broadly grouped into three categories:

1. Number resources—the coordination and allocation of the global pool of IP numbers; 2. Protocol Assignments—the management of IP numbering systems in conjunction with Internet standards bodies; and 3. Domain names—management of the DNS authoritative root zone file.

Additionally, and intertwined with the IANA functions contract, a cooperative agreement between NTIA and Verisign (the company that operates the .com and .net registries) authorizes Verisign to manage and maintain the official root zone file that is contained in the Internet's root servers which underlie the functioning of the DNS.

The IANA functions contract gives the U.S. government, through NTIA, the authority to approve various technical functions such as modifying the root zone file (which would include, for example, adding additional generic top level domains [gTLDs] to the root zone). In this narrow sense, NTIA's role is strictly clerical and administrative. Policymaking—such as decisions to make changes in the root zone file—is made by ICANN through its internal policy development process. Although it has the authority to do so under the IANA functions contract, NTIA has never refused to approve any IANA related actions as directed by ICANN.

However, the IANA functions contract, while primarily administrative in nature, carries broader significance because it has conferred upon the U.S. government a "stewardship" role over ICANN and the domain name system. This stewardship role does not mean that the NTIA controls ICANN or has the authority to approve or disapprove ICANN policy decisions. Rather, the U.S. government's authority over the IANA functions has been viewed by the Internet community as a "backstop" that serves to reassure Internet users that the U.S. government is prepared and positioned to constitute a check on ICANN under extreme circumstances (such as, for example, fiscal insolvency, failure to meet operational obligations, or capture or undue influence by a single stakeholder or by outside interests).

Meanwhile, the U.S. government continues to participate in the ICANN policy development process through membership in the Governmental Advisory Committee (GAC), which provides advice to ICANN on issues of public policy, especially where there may be an interaction between ICANN's activities or policies and national laws or international agreements. However, while all governments have access to membership in the GAC, the U.S. government arguably has had more influence over ICANN and the DNS than other governments by virtue of the IANA functions contract with ICANN.

NTIA Intent to Transition Stewardship of the DNS

On March 14, 2014, NTIA announced its intention to transition its stewardship role and procedural authority over key domain name functions to the global Internet multistakeholder community. NTIA's stated intention was that it would let its IANA functions contract with ICANN expire on September 30, 2015, if a satisfactory transition could be achieved. With NTIA having the option of extending the contract for up to two two-year periods through September 30, 2019, NTIA announced on August 17, 2015, that it will extend the IANA functions contract through September 30, 2016.

As a first step, NTIA asked ICANN to convene interested global Internet stakeholders to develop a proposal to achieve the transition. Specifically, NTIA expects ICANN to work collaboratively with parties directly affected by the IANA contract, including the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB), the Internet Society (ISOC), the Regional Internet Registries (RIRs), top level domain name operators, Verisign, and other interested global stakeholders. In October 2013, many of these groups—specifically, the Internet technical organizations responsible for coordination of the Internet infrastructure—had called for "accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing."

NTIA has stated that it will not accept any transition proposal that would replace the NTIA role with a government-led or an intergovernmental organization solution. In addition, NTIA told 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 resilience of the Internet DNS; meet the needs and expectation of the global customers and partners of the IANA services; and maintain the openness of the Internet.

Multistakeholder Process to Develop a Transition Proposal

ICANN convened a process through which the multistakeholder community attempted to come to consensus on a transition proposal. The process was divided into two separate but related parallel processes: (1) IANA Stewardship Transition and (2) Enhancing ICANN Accountability. Figure 1 shows a schematic diagram of the two interlinked processes. NTIA has stated that it views these two processes as "directly linked" and that "both issues must be addressed before any transition takes place." On March 10, 2016, the ICANN Board formally accepted the IANA Stewardship Transition proposal and the Enhancing ICANN Accountability report. The Board formally transmitted the transition and accountability plans to NTIA for approval.

IANA Stewardship Transition

Based on feedback received from the Internet community at its March 2014 meeting in Singapore, ICANN put out for public input and comment a draft proposal of Principles, Mechanisms and Process to Develop a Proposal to Transition NTIA 's Stewardship of the IANA F unctions . Under the draft proposal, a steering group was formed "to steward the process in an open, transparent, inclusive, and accountable manner." The steering group was composed of representatives of each ICANN constituency and of parties directly affected by the transition of IANA functions (for example, Internet standards groups and Internet number resource organizations).

On June 6, 2014, after receiving public comments on the steering group draft proposal, ICANN announced the formation of a Coordination Group which was responsible for preparing a transition proposal. The IANA Stewardship Transition Coordination Group (ICG) was composed of 30 individuals representing 13 Internet stakeholder communities. On August 27, 2014, the ICG released its charter, which stated that its mission is "to coordinate the development of a proposal among the communities affected by the IANA functions."

The ICG requested a proposal for each of the three primary IANA functions (domain name-related functions, numbering, and protocol parameters) to be developed by the three operational communities associated with each of those primary functions. Upon receipt of the three proposals, the ICG worked to develop a single consolidated proposal. The three proposals break out as follows:

Number Resources—developed by the five Regional Internet Registries (RIR) via the Consolidated RIR IANA Stewardship Proposal Team (CRISP Team). Protocol Parameters—developed by the Internet Engineering Task Force (IETF) through the IANAPLAN Working Group (IANAPLAN WG). Domain Names—developed by the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG-Stewardship).

While the Number Resources and the Protocol Parameter proposals were completed in January 2015, consensus on a domain name function proposal proved more difficult to reach, with the CWG-Stewardship group unable to meet an initial January 2015 deadline. This is perhaps due to the fact that both numbering and protocols are currently operated by external groups which already perform these activities under contract with ICANN. The domain name IANA function is performed by ICANN itself (under contract to NTIA), and the question of how to transition away from the NTIA contract with respect to the domain naming function is inherently more complex and controversial.

The CWG-Stewardship group was composed of 19 members appointed by chartering organizations and 115 participants who contributed to mailing list conversations and meetings. The key question the group grappled with was whether a new organization or entity should be created to oversee the IANA functions contract (an external model), or whether ICANN itself—subject to enhanced accountability measures—should be given authority over the IANA function (an internal model).

Proposal

On March 10, 2016, the ICANN Board approved the final IANA Transition Stewardship Proposal. The proposal combines the three proposals developed for Numbers Resources, Protocol Parameters, and Domain Names:

Numbers Resources—the numbers community proposed that ICANN continue to serve as the IANA Functions Operator and perform those services under a contract with the five Regional Internet Registries (RIRs). The numbers community also proposed a contractual Service Level Agreement between the RIRs and the IANA Numbering Service Operator and a Review Committee comprising community representatives from each region to advise the RIRs on the IANA functions operator's performance and adherence to identified service levels. Protocol Parameters—the protocol parameters community proposed to continue to rely on the current system of agreements, policies, and oversight mechanisms created by the IETF, ICANN, and IAB for the provisions of the protocols parameters-related IANA functions. Domain Names—the domain names community proposed to form a new, separate legal entity, Post-Transition IANA (PTI), as an affiliate (subsidiary) of ICANN that would become the IANA functions operator in contract with ICANN. This proposal integrates elements of both the internal and external models. ICANN would assume the role currently fulfilled by NTIA (overseeing the IANA function), while PTI would assume the role currently played by ICANN (the IANA functions operator). The legal jurisdiction in which ICANN resides (California) is to remain unchanged. The proposal includes the creation of a Customer Standing Committee (CSC) responsible for monitoring the operator's performance according to the contractual requirements and service level expectations. The proposal establishes a multistakeholder IANA Function Review process (IFR) to conduct review of PTI.

Enhancing ICANN Accountability

In parallel with the IANA stewardship transition process, ICANN initiated a separate but related process on how to enhance ICANN's accountability. The purpose of this process was to ensure that ICANN will remain accountable to Internet stakeholders if and when ICANN is no longer subject to the IANA contract with the U.S. government. Specifically, the process examined how ICANN's broader accountability mechanisms should be strengthened to address the potential absence of its historical contractual relationship with the DOC, including looking at strengthening existing accountability mechanisms (e.g., the ICANN bylaws and the Affirmation of Commitments).

To implement the accountability process, ICANN formed a Cross Community Working Group (CCWG) to develop proposals to enhance ICANN's accountability toward all stakeholders. The CCWG pursued two interrelated Work Streams. Work Stream 1 focused on mechanisms enhancing ICANN accountability that must be in place or committed to within the timeframe of the IANA Stewardship Transition. Work Stream 2 focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition.

Membership in the CCWG was open to individuals appointed by the various stakeholder organizations within the ICANN community, with decisions made by consensus. Additionally, the CCWG was open to any interested person as a participant. Participants were able to attend and participate in all meetings, but were not part of any consensus or decisionmaking process.

Additionally, up to seven advisors, selected by a Public Experts Group, provided the CCWG with independent advice and research and identified best practices at an early stage of deliberation. Other members of the CCWG included an ICANN staff member, a past participant in the Accountability and Transparency Review Team(s), a liaison with the IANA Stewardship Transition Coordination Group (ICG), and an ICANN Board liaison. All of those individuals participated but were not part of the decisionmaking process.

Proposal

The CCWG-Accountability Work Stream 1 proposal was approved by the ICANN Board on March 10, 2016. The proposal seeks to enhance ICANN's accountability by specifying powers for the ICANN community that can be enforced when consensus cannot be reached. Specifically, CCWG-Accountability proposed the creation of a new entity, referred to as the "Empowered Community," that will act at the direction of the multistakeholder community as constituted by ICANN's Supporting Organizations and Advisory Committees. Under California law, the new entity would take the form of a California unincorporated association and be given the role of Sole Designator of ICANN Board Directors. Triggered by a petitioning, consultation, and escalation process, the Empowered Community would have the power to

Reject ICANN Budgets, IANA Budgets or Strategic/Operating Plans. Reject changes to ICANN's Standard Bylaws. Approve changes to new Fundamental Bylaws, Articles of Incorporation, and ICANN's sale or other disposition of all or substantially all of ICANN's assets. The threshold for Board approval for changing a Fundamental Bylaw is raised from two-thirds to three-fourths. Remove an individual ICANN Board Director. Recall the entire ICANN Board. Initiate a binding Independent Review Process on behalf of the Community. Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation. Inspect ICANN's books and records, and initiate investigatory audits.

Also proposed is a revised mission statement for the ICANN Bylaws that clarifies what ICANN does, while not changing ICANN's historic mission; an enhanced and binding Independent Review Process (IRP) with a broader scope, reaffirming the IRP's power to ensure ICANN stays within its mission; and enhancements to the Reconsideration Request process. Other recommendations include the insertion of a commitment to recognition of human rights, incorporating the reviews called for under the Affirmation of Commitments into the ICANN Bylaws, and modifying structural reviews to include considerations of supporting organizations' and advisory committees' accountability.

Finally, the proposal addressed the role of the Governmental Advisory Committee (GAC) and how ICANN should consider GAC advice. Under the proposal, the GAC will participate in the Empowered Community, except in matters where the Empowered Community is deciding whether to challenge a board action based on GAC advice. GAC formal advice must be reached by full consensus, at which point the Board and GAC would try to find a mutually acceptable solution. If a mutual agreement cannot be reached, the Board can choose not to follow that advice by a vote of at least 60% of Board members. The CCWG-Accountability proposal also recommended new language in the Bylaws that would prohibit ICANN from taking any action, including actions advised by GAC, that is inconsistent with the ICANN Bylaws.

Stress Tests

A critical aspect of the CCWG-Accountability group proposal was designing "stress tests" for each solution or accountability measure that the two work streams developed. Stress tests are designed to measure the resistance of the accountability measures to various contingencies. The proposal identified 37 specific contingencies that have been consolidated into five categories of stress tests:

Financial crisis or insolvency: ICANN becomes fiscally insolvent, and lacks resources to adequately meet obligations; Failure to meet operational expectations: ICANN fails to process change or delegation requests to the IANA Root Zones, or executes a change of delegation over objections of stakeholders; Legal/legislative action: ICANN is the subject of litigation under existing or future policies, legislation, or regulation. ICANN attempts to delegate a new TLD or redelegate a non-compliant existing TLD; Failure of accountability: Action by one or more Board members, the CEO, or staff is contrary to mission or bylaws. ICANN is captured by one stakeholder segment; and Failure of accountability to external stakeholders: ICANN modifies its structure to avoid obligation to external stakeholders. ICANN delegates, subcontracts, or abdicates obligations to a third party. ICANN merges with or is acquired by an unaccountable third party.

According to the CCWG-Accountability charter, stress tests could include an analysis of potential weaknesses and risks; an analysis of existing remedies and their robustness; a definition of additional remedies or modification of existing remedies; and a description of how the proposed solutions would mitigate the risk of contingencies or protect the organization against such contingencies.

Ultimately, any proposed accountability enhancements will be tested against the following questions:

Do they make ICANN more susceptible to "capture" (or the assertion of undue influence) by one stakeholder or group of stakeholders? Can any individual or group make use of the redress and review processes in a way that paralyzes the work of ICANN? Does any group of stakeholders have the ability to modify its internal procedures in a way that shifts how it interacts among the rest of the stakeholders within ICANN?

Implementation

With the transition plan submitted to NTIA, language in the ICANN Bylaws was formulated and modified to incorporate the proposed recommendations. On May 27, 2016, the ICANN Board formally adopted the revised bylaws. On August 12, 2016, ICANN notified NTIA that implementation tasks were complete, and that "all other tasks in support of the IANA stewardship transition are either in a final review state or awaiting approval, which will be complete in advance of September 30, 2016, to allow the IANA functions contract to expire."

Role of NTIA

On August 17, 2015, NTIA announced its intention to extend the IANA function contract for one year, until September 30, 2016. NTIA stated that beyond 2016, they have the option of extending the contract for an additional period of up to three years, if needed. NTIA also announced that in March 2015, it asked ICANN and Verisign to develop a transition plan for managing the root zone file after the IANA transition. Currently, NTIA has a cooperative agreement with Verisign which designates NTIA as the Root Zone Administrator. Under a proposal developed by ICANN and Verisign, the IANA Functions Operator (currently ICANN and to be determined under the IANA transition) will have administrative authority over Verisign's operation of the root zone file.

NTIA had to approve the multistakeholder community proposal in order for the transition to take place. ICANN submitted the transition proposal to NTIA on March 10, 2016. On March 11, NTIA stated that it "will now begin the process of reviewing the proposal, hopefully within 90 days, to determine whether it meets the criteria we outlined when we announced the transition." As part of this review, NTIA contracted with the Berkman Center at Harvard to provide an independent review of the IANA Stewardship Transition proposal. NTIA stated that it planned to gather input from other federal agencies and to be guided by recommendations from the Government Accountability Office.

On June 9, 2016, NTIA issued its IANA Stewardship Transition Proposal Assessment Report . The report announced NTIA's formal determination that the transition proposal meets the criteria set forth when NTIA announced its intention to transition U.S. government stewardship over IANA. Specifically, NTIA determined that the proposal supports and enhances the multistakeholder model; maintains the security, stability, and resiliency of the Internet; meets the needs and expectations of global customers; maintains the openness of the Internet; and does not replace NTIA's role with a government-led or intergovernmental organization solution.

Having received the August 12, 2016, notification from ICANN that it had completed the implementation tasks associated with the IANA transition plan, NTIA notified ICANN on August 16, 2016 that "barring any significant impediment, NTIA intends to allow the IANA functions contract to expire as of October 1."

Role of Congress in the IANA Transition

Concerns have arisen in Congress over the proposed transition. Some Members have argued that the transition requires additional scrutiny by Congress, while others have questioned whether the transition should take place at all. While the U.S. government has no statutory authority over ICANN or the DNS, Congress does have legislative and budgetary authority over NTIA, which is seeking to relinquish its contractual authority over the IANA functions. As such, Congress has keenly monitored the progress of the transition, primarily through congressional committees with jurisdiction over NTIA. These include the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee. Additionally, the House and Senate Appropriations Committees—which determine and control NTIA's annual budget—could impact NTIA's ability to relinquish its existing authority over the IANA functions.

Legislative Activities in the 113th Congress

On March 27, 2014, Representative Shimkus introduced H.R. 4342 , the Domain Openness Through Continued Oversight Matters (DOTCOM) Act. H.R. 4342 would have prohibited the NTIA from relinquishing responsibility over the Internet domain name system until GAO submits to Congress a report on the role of the NTIA with respect to such system. The report would have included a discussion and analysis of the advantages and disadvantages of the change and addressed the national security concerns raised by relinquishing U.S. oversight. It would also have required GAO to provide a definition of the term "multistakeholder model" as used by NTIA with respect to Internet policymaking and governance. H.R. 4342 was referred to the House Energy and Commerce Committee. On April 2, 2014, the Subcommittee on Communications and Technology held a hearing on the DOTCOM Act. H.R. 4342 was approved by the House Energy and Commerce Committee on May 8, 2014. Subsequently on June 5, 2014, the House Energy and Commerce Committee requested that the GAO examine the Administration's proposal to transition NTIA's current authority over IANA to the multistakeholder Internet community. On August 15, 2015, GAO released a report finding that NTIA had not yet developed a formal framework for evaluating the transition plan. GAO recommended that NTIA review existing frameworks for evaluation to help evaluate and document whether and how the transition proposal meets NTIA's core goals.

On May 22, 2014, the text of the DOTCOM Act was offered by Representative Shimkus as an amendment to H.R. 4435 , the National Defense Authorization Act for FY2015. During House consideration of H.R. 4435 , the amendment was agreed to by a vote of 245-177. H.R. 4435 was passed by the House on May 22, 2014. The House Armed Services bill report accompanying H.R. 4435 ( H.Rept. 113-446 ) stated the committee's belief that any new Internet governance structure should include protections for the Department of Defense-controlled .mil generic top level domain and its associated Internet protocol numbers. The committee also supported maintaining separation between the policymaking and technical operation of root-zone management functions.

On June 2, 2014, the Senate Armed Services Committee reported S. 2410 , its version of the FY2015 National Defense Authorization Act. Section 1646 of S. 2410 ("Sense of Congress on the Future of the Internet and the .mil Top-Level Domain") stated that it is the sense of Congress that the Secretary of Defense should

advise the President to transfer the remaining role of the United States Government in the functions of the Internet Assigned Numbers Authority to a global multi-stakeholder community only if the President is confident that the '.MIL' top-level domain and the Internet Protocol address numbers used exclusively by the Department of Defense for national security will remain exclusively used by the Department of Defense.

Section 1646 also directed DOD to take "all necessary steps to sustain the successful stewardship and good standing of the Internet root zone servers managed by components of the Department of Defense." In the report accompanying S. 2410 ( S.Rept. 113-176 ), the committee urged DOD to

seek an agreement through the IANA transition process, or in parallel to it, between the United States and the Internet Corporation for Assigned Names and Numbers and the rest of the global Internet stakeholders that the .mil domain will continue to be afforded the same generic top level domain status after the transition that it has always enjoyed, on a par with all other country-specific domains.

The Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 was signed by the President on December 16, 2014 ( P.L. 113-235 ). The enacted law does not contain the DOTCOM Act provision contained in the House-passed version. Section 1639 of P.L. 113-235 ("Sense of Congress on the Future of the Internet and the .mil Top-Level Domain") states it is the sense of Congress that the Secretary of Defense should support the IANA transfer

only if assurances are provided for the protection of the current status of legacy top-level domain names and Internet Protocol address numbers, particularly those used by the Department of Defense and the components of the United States Government for national security purposes; mechanisms are institutionalized to uphold and protect consensus-based decision making in the multi-stakeholder approach; and existing stress-testing scenarios of the accountability process of the multi-stakeholder model can be confidently shown to work transparently, securely, and efficiently to maintain a free, open, and resilient Internet.

It is also the sense of Congress that the Secretary of Defense should "take all necessary steps to sustain the successful stewardship and good standing of the Internet root zone servers managed by components of the Department of Defense, including active participation, review, and analysis for transition planning documents and accountability stress testing."

On May 8, 2014, the House Appropriations Committee approved H.R. 4660 , the FY2015 Commerce, Justice, Science (CJS) Appropriations Act, which appropriates funds for DOC and NTIA. The bill report ( H.Rept. 113-448 ) stated that in order that the transition is more fully considered by Congress, the committee's recommendation for NTIA does not include any funds to carry out the transition and that the committee expects that NTIA will maintain the existing no-cost contract with ICANN throughout FY2015. During House consideration of H.R. 4660 , an amendment offered by Representative Duffy was adopted on May 30, 2014 (by recorded vote, 229-178) which stated that (Section 562) "[n]one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions." H.R. 4660 was subsequently passed by the House on May 30, 2014.

On June 5, 2014, the Senate Appropriations Committee reported its version of the FY2015 Commerce, Justice, Science, and Related Agencies Appropriations Act ( S. 2437 ). In the bill report ( S.Rept. 113-181 ) the committee directed NTIA to

conduct a thorough review and analysis of any proposed transition of the IANA contract to ensure that ICANN has in place an NTIA-approved multistakeholder oversight plan that is insulated from foreign government and intergovernmental control; and report quarterly to the committee on all aspects of the privatization process and inform the committee, as well as the Committee on Commerce, Science, and Transportation, not less than seven days in advance of any decision with respect to a successor contract.

The committee also expressed its concern that NTIA has not been a strong enough advocate for U.S. businesses and consumers through its participation in ICANN's Governmental Advisory Committee (GAC), and stated that it awaits "the past due report on NTIA's plans for greater involvement in the GAC and the efforts it is undertaking to protect U.S. consumers, companies, and intellectual property."

The Consolidated and Further Continuing Appropriations Act, 2015 ( P.L. 113-235 ) was signed by the President on December 16, 2014. Section 540 provides that during FY2015, NTIA may not use any appropriated funds to relinquish its responsibility with respect to Internet domain name system functions, including its responsibility with respect to the authoritative root zone file and the IANA functions. The prohibition on funding for NTIA's IANA transition activities expires on September 30, 2015. Additionally, the Explanatory Statement accompanying P.L. 113-235 reiterates House and Senate language regarding ICANN and IANA matters and modifies the Senate language by directing NTIA "to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA's role with respect to ICANN or IANA activities." The Explanatory Statement also directs NTIA to submit a report to the House and Senate Committees on Appropriations within 45 days of enactment of P.L. 113-235 regarding "any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States."

Other legislation addressing the proposed transition included:

H.R. 4367 (Internet Stewardship Act of 2014, introduced by Representative Mike Kelly on April 2, 2014), which would have prohibited NTIA from relinquishing its DNS responsibilities unless permitted by statute; H.R. 4398 (Global Internet Freedom Act of 2014, introduced by Representative Duffy on April 4, 2014), which would have prohibited NTIA from relinquishing its authority over the IANA functions; and H.R. 5737 (Defending Internet Freedom Act of 2014, introduced by Representative Mike Kelly on November 19, 2014), which would have prohibited NTIA from relinquishing its responsibilities over domain name functions unless it certifies that the transition proposal meets certain specified criteria.

H.R. 4367 , H.R. 4398 , and H.R. 5737 were referred to the Committee on Energy and Commerce. None of those bills were enacted by the 113 th Congress. Meanwhile, the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet, held a hearing on April 10, 2014, that examined the proposed transition.

Legislative Activities in the 114th Congress

DOTCOM Act

The DOTCOM Act of the 113 th Congress was reintroduced into the 114 th Congress by Representative Shimkus as H.R. 805 on February 5, 2015. As introduced, the DOTCOM Act of 2015 would have prohibited NTIA from relinquishing responsibility over the Internet domain name system until GAO submitted a report to Congress examining the implications of the proposed transfer. H.R. 805 would have directed GAO to issue the report no later than one year after NTIA received a transition proposal. On June 17, 2015, the House Committee on Energy and Commerce approved an amended DOTCOM Act. The amended version of H.R. 805 reflected a bipartisan agreement and was approved unanimously by voice vote. On June 23, 2015, H.R. 805 was passed by the House (378-25) under suspension of the rules.

H.R. 805 , as passed by the House, does not permit NTIA's authority over the IANA function "to terminate, lapse, be cancelled, or otherwise cease to be in effect" until 30 legislative days after NTIA submits a report to Congress on the final IANA transition proposal. Specifically, the report must contain the final transition proposal and a certification by NTIA that the proposal:

supports and enhances the multistakeholder model of Internet governance; maintains the security, stability, and resiliency of the Internet domain name system; meets the needs and expectations of the global customers and partners of IANA services; maintains the openness of the Internet; and does not replace the role of NTIA with a government-led or intergovernmental organization solution.

H.R. 805 also requires NTIA to certify that the required changes to ICANN's bylaws contained in the transition proposal have been adopted by ICANN.

S. 1551 , the Senate companion version of the DOTCOM Act of 2015, was introduced on June 11, 2015, by Senator Thune. The language of S. 1551 is virtually identical to H.R. 805 as approved by the House Committee on Energy and Commerce. S. 1551 was referred to the Senate Committee on Commerce, Science, and Transportation.

FY2016 Department of Commerce Appropriations

On June 3, 2015, the House passed H.R. 2578 , the FY2016 Commerce, Justice, Science (CJS) Appropriations Act, which appropriated funds for DOC and NTIA. Section 536 of H.R. 2578 stated that "[n]one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions."

On June 16, 2015, the Senate Appropriations Committee reported its version of the FY2016 Commerce, Justice, Science, and Related Agencies Appropriations Act. In the bill report ( S.Rept. 114-66 ) the committee directed NTIA to "continue quarterly reports to the committee on all aspects of the transition process, and further directs NTIA to inform the Committee and the Senate Committee on Commerce, Science and Transportation, not less than 45 days in advance of any decision with respect to a successor contract." The committee also stated that it "continues to be concerned about this process and supports the continued stewardship role of the United States over the domain name system in order to ensure the security of the .gov and .mil domains and to protect the freedom of speech and expression internationally."

The Consolidated Appropriations Act, 2016 ( P.L. 114-113 ) prevents NTIA from relinquishing its contractual control over IANA in FY2016. Section 539 of P.L. 114-113 states the following:

(a) None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration, during fiscal year 2016, with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.

(b) Not withstanding any other law, subsection (a) of this section shall not apply in fiscal year 2017.

FY2017 Department of Commerce Appropriations

On April 21, 2016, the Senate Appropriations Committee reported its version of the FY2017 Commerce, Justice, Science, and Related Agencies Appropriations Act ( S. 2837 ). The bill report ( S.Rept. 114-239 ) expressed the committee's continued concern about the proposed IANA transition and the security of the .gov and .mil domains. The committee directed NTIA to continue quarterly reports to the committee on all aspects of the transition process, and further directed NTIA to inform the committee and the Senate Committee on Commerce, Science, and Transportation not less than 45 days in advance of any decision with respect to a successor IANA contract.

On May 24, 2016, the House Appropriations Committee approved the FY2017 Commerce, Justice, Science (CJS) Appropriations act ( H.R. 5393 ). The committee continued seeking to prohibit NTIA from relinquishing authority over IANA in FY2017. Section 534 stated that for FY2017,

[n]one of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.

The bill report ( H.Rept. 114-605 ) stated:

The Committee remains concerned by NTIA's intent to transition certain Internet domain name functions to the global multistakeholder community. Any such transition represents a significant public policy change and should be preceded by an open and transparent process. In order for this issue to be considered more fully by the Congress, the Committee includes section 534 prohibiting funding for the transition.

Other Legislation

S. 3034 , the Protecting Internet Freedom Act, was introduced by Senator Cruz on June 8, 2016. The legislation would prohibit NTIA from relinquishing its authority over the IANA function and the root zone file unless Congress enacts a federal statute which expressly grants NTIA such authority. The bill also requires that no later than 60 days after enactment, NTIA shall provide to Congress a written certification that the U.S. government has secured sole ownership of the .gov and .mil top level domains, and that NTIA has entered into a contract with ICANN ensuring that the U.S. government has exclusive control and use of the .mil and .gov domains in perpetuity. On June 7, 2016, Senator Cruz submitted language of the Protecting Internet Freedom Act as an amendment ( S.Amdt. 4486 ) to the FY2017 National Defense Authorization Act ( S. 2943 ).

H.R. 5418 , the companion House version of the Protecting Internet Freedom Act, was introduced by Representative Duffy on June 9, 2016.

Other introduced legislation that addresses the proposed IANA transition includes:

H.R. 355 (Global Internet Freedom Act of 2015, introduced by Representative Duffy on January 14, 2015), which would prohibit NTIA from relinquishing its authority over the IANA functions. H.R. 2251 (Defending Internet Freedom Act of 2015, introduced by Representative Mike Kelly on May 15, 2015), which would prohibit NTIA from relinquishing its responsibilities over domain name functions and the IANA function unless it certifies that the transition proposal meets certain specified criteria. H.R. 5329 (Securing America's Internet Domains Act of 2016, introduced by Representative Kelly of Pennsylvania on May 25, 2016), which would require NTIA to extend the IANA functions contract unless it certifies that the United States government has secured sole ownership of the .gov and .mil top level domains and that it has entered into a contract with ICANN that provides the United States with exclusive control and use of those domains in perpetuity. S.Res. 71 —designating the week of February 8 through February 14, 2015, as "Internet Governance Awareness Week"—was introduced by Senator Hatch on February 5, 2015. S.Res. 71 seeks to increase public awareness regarding NTIA's proposed transition, encourage public education about the importance of the transition process; and call the attention of the participants at the ICANN meeting in Singapore to the importance of designing accountability and governance reforms to best prepare ICANN for executing the responsibilities that it may receive under any transition of the stewardship of the IANA functions. S.Res. 71 was passed by the Senate on February 5, 2015.

Congressional Hearings

As part of its continuing oversight over NTIA and the domain name system, Congress has held multiple hearings on the proposed IANA transition and on ICANN's management of the domain name system:

On February 25, 2015, the Senate Committee on Commerce, Science, and Transportation held a hearing entitled, "Preserving the Multistakeholder Model of Internet Governance." On May 13, 2015, the House Committee on Energy and Commerce, Subcommittee on Communications and Technology, held a hearing entitled, "Stakeholder Perspectives on the IANA Transition." On May 13, 2015, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual, Property and the Internet, held a hearing entitled, "Stakeholder Perspectives on ICANN: The .Sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet's Operation." On July 8, 2015, the House Committee on Energy and Commerce, Subcommittee on Communications and Technology, held a hearing entitled, "Internet Governance Progress After ICANN 53." On March 17, 2016, the House Committee on Energy and Commerce, Subcommittee on Communications and Technology, held a hearing entitled, "Privatizing the Internet Assigned Number Authority." On May 24, 2016, the Senate Committee on Commerce, Science, and Transportation held a hearing entitled, "Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority."

Issues for Congress

If the transition occurs and NTIA relinquishes its authority over the IANA functions, the U.S. government, through NTIA, will continue to participate in ICANN through the Governmental Advisory Committee. However, in a post-transition environment, the U.S. government (both the executive branch and Congress) will arguably have less authority and influence over ICANN and the DNS than it currently has. The key issue is: should the NTIA relinquish its authority, and if so, should NTIA relinquish its authority on September 30, 2016, or should that deadline be extended? Further, what organizational structures and safeguards should be in place within the multistakeholder transition plan to ensure that the domain name system remains stable, efficient, and free from the disproportionate influence of intergovernmental entities (such as the United Nations) as well as from other governments who may be hostile to U.S. interests?

Should the NTIA Relinquish Its Authority?

Supporters of the transition argue that by transferring its remaining authority over ICANN and the DNS to the global Internet community, the U.S. government will bolster its continuing support for the multistakeholder model of Internet governance, and that this will enable the United States to more effectively argue and work against proposals for intergovernmental control over the Internet. The argument follows that if NTIA does not relinquish authority over the IANA functions, the United States will continue to be in the paradoxical and problematic position of opposing moves in intergovernmental fora to increase the power of governments in governing the Internet, while at the same time maintaining its unilateral authority over the Internet DNS by virtue of the IANA contract.

Supporters of the transition also point out that the U.S. government and Internet stakeholders have, from the inception of ICANN, envisioned that U.S. authority over IANA functions would be temporary, and that the DNS would eventually be completely privatized. According to NTIA, this transition is now possible, given that "ICANN as an organization has matured and taken steps in recent years to improve its accountability and transparency and its technical competence."

Those opposed, skeptical, or highly cautious about the transition point out that NTIA's role has served as a necessary "backstop" to ICANN, which has given Internet stakeholders confidence that the integrity and stability of the DNS is being sufficiently overseen. Critics assert that in the wake of the Edward Snowden NSA revelations, foreign governments might gain more support internationally in their continuing attempts to exert intergovernmental control over the Internet, and that any added intergovernmental influence over the Internet and the DNS would be that much more detrimental to the interests of the United States if NTIA's authority over ICANN and the DNS were to no longer exist.

Another concern regards the development of the transition plan and a new international multistakeholder entity that would provide some level of stewardship over the DNS. Critics are concerned about the risks of foreign governments—particularly repressive regimes that favor censorship of the Internet—gaining influence over the DNS through the transition to a new Internet governance mechanism that no longer is subject to U.S. government oversight.

Should the Transition Be Delayed?

While not necessarily opposing the transition, some have suggested that the transition should be delayed and that NTIA's IANA contract with ICANN should be extended past September 30, 2016. Proponents of a delay argue that once the transition takes place it is irreversible, and that it would be prudent to temporarily maintain existing U.S. government authority over IANA and ICANN to ensure that ICANN's new governance structure is accountable, robust, functional, and resistant to undue influence by governments. Proponents of a delay also argue that important issues such as ICANN's jurisdiction and how ICANN will address human rights are still being developed under the Work Stream 2 activities of the Enhancing Accountability activity, and that NTIA's authority should remain in place until those issues also are decided.

Opponents of a delay argue that the multistakeholder community, after two years of work in developing the transition plan, has reached consensus agreement and is expecting the transition to take place on September 30, 2016. A delay, they argue, would send a message to the international community that the United States government is not serious about the transition, and this perception would weaken the multistakeholder system while emboldening and strengthening the influence of foreign governments who advocate for moving authority over the domain name system into an intergovernmental forum such as the United Nations.

.mil and .gov Top Level Domains

Dating back to the early days of the Internet, the U.S. government has had exclusive legacy control over the .mil and .gov top level domains. The .mil domain is administered by the Department of Defense Network Information Center and is reserved solely for the use of U.S. military entities. The .gov domain is administered by the General Services Administration and is available to federal, state, local, and tribal governmental entities. There exists no contract between ICANN and the U.S. government that confers U.S. government ownership over the .mil and .gov domains. At issue is whether the transition could potentially have an impact on continued U.S. government control of the .mil and .gov domains.

In a pair of June 2016 letters, NTIA requested, and ICANN agreed, to take no action to redelegate U.S. government administered domains such as .mil and .gov without first obtaining express written approval from NTIA. However, some argue that a legally binding contract should be in place to ensure sole U.S. ownership, control, and use of the .mil and .gov domains in perpetuity.

Does NTIA Have the Authority to Make the Transfer?

Opponents of the transition argue that NTIA's relinquishing of its authority over the IANA contract constitutes a transfer of government property, and that the U.S Constitution states that only Congress has the power to transfer government property. Therefore, the transition can only be legal if Congress passes a law authorizing the transfer. NTIA has disputed this argument, stating that no government property or assets are involved in the IANA contract, and "[j]ust as federal agencies can enter into contracts they need to fulfill their missions without specific legislative authority, federal agencies can discontinue obtaining such services when they no longer need them."

On September 22, 2015, the Chairmen of the House and Senate Judiciary Committees (Representative Goodlatte and Senator Grassley), Senator Cruz, and Representative Issa sent a letter requesting that GAO examine three questions: would the termination of NTIA's contract with ICANN cause government property of any kind to be transferred to ICANN; is the root zone file or other related or similar materials or information U.S. government property; and if so, does NTIA have the authority to transfer the root zone file or other related materials or information to a non-federal entity?

Evaluating the Transition Plan

NTIA has evaluated the transition plan and has determined that it has met the criteria NTIA set when it announced the beginning of the transition process in 2014. In its evaluation, NTIA gathered input from other federal agencies and was guided by recommendations of the Government Accountability Office (GAO). The GAO recommendations were provided in the August 2015 GAO report, Structured Evaluation Could Help Assess Proposed Transition of Key Domain Name and Other Technical Functions . GAO identified two frameworks or methods of evaluation that NTIA could consider in its assessment of the transition plan. These are the Committee of Sponsoring Organizations of the Treadway Commission Internal Control—Integrated Framework (COSO framework) and the International Organization for Standardization's quality management principles (ISO quality management principles).

Congress is assessing NTIA's evaluation of the transition plan and evaluating the transition plan itself. A key issue for Congress will be whether—in the absence of NTIA's stewardship role—the plan ensures ICANN's accountability to the multistakeholder community, and whether the new organizational structures that are put in place ensure that ICANN and the domain name system cannot be unduly influenced by foreign governments and intergovernmental organizations such as the United Nations. Another issue is whether ICANN and the multistakeholder community will be able to adequately assess, test, and implement the transition recommendations before NTIA's contract with IANA is relinquished.

Concluding Observations

The future of how ICANN and the DNS will be governed is highly relevant to the broader question of how the Internet should be governed. While it is true that ICANN's jurisdiction is limited to the technical underpinnings of the Internet (unique Internet identifiers such as domain names and addresses), it is also true that ICANN policy decisions (such as new gTLDs) can affect other areas of Internet policy such as intellectual property, cybersecurity, privacy, and Internet freedom.

As the Internet expands and becomes more pervasive throughout the world in all aspects of modern society, the question of how it should be governed becomes more pressing, with national governments recognizing an increasing stake in ICANN policy decisions, especially in cases where Internet DNS policy intersects with national laws and interests. ICANN is viewed by many as a ground-breaking example of multistakeholder governance. While ICANN does not "control" the Internet, how it is ultimately governed may set an important precedent in future policy debates—both domestically and internationally—over how the Internet might be governed, and what role governments and intergovernmental organizations should play.

Appendix. Acronyms