International Governance

Congress Tries To Stop the IANA Transition -- But Does It?

By Paul Rosenzweig
Wednesday, December 10, 2014, 10:57 AM

By now, readers of this blog are aware of the decision by the Obama Administration to relinquish the last vestiges of control of the Internet Assigned Numbers Authority (known as the IANA function).  The IANA function is currently operated by a non-profit corporation, the Internet Corporation for Assigned Names and Numbers (ICANN), under contract to the National Telecommunications and Information Administration (NTIA), which is an Administration within the Department of Commerce.  The mechanism by which the Obama Administration has chosen to relinquish control is through a decision to simply not renew that contract when it expires in September 2015 (thereby leaving ICANN with the authority to manage the IANA function on its own).  The NTIA has set certain conditions on this decision (background here, here, and here) and ICANN is busy trying to develop a proposal that meets those conditions -- so the decision is a contingent one, where NTIA will, in the end, have to evaluate ICANN's proposals.

Now Congress has intervened.  In the Omnibus spending bill that looks to be going through Congress this week the following language appears:

SEC. 540. (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 2015 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) Subsection (a) of this section shall expire on September 30, 2015.

I think this is unlikely to have the effect that Congress seems to intend.  As I said back in May, when this proposal was first made, the language prohibits the NTIA from spending funds to carry out the transition.  So, if enacted in law, NTIA would be disabled from participating in discussions with ICANN about the nature of the transition, precisely at the critical moment when those discussions would be most useful to NTIA, to ICANN and to America.

More importantly, since the act of not signing a contract (which is what NTIA proposes to do) costs nothing, there can be no funding prohibition that effectively prevents NTIA from declining to renew the contract.  To achieve that end it need simply let the current contract expire on its own terms by doing precisely zero -- inaction that is consistent with the funding prohibition.  The only way for Congress to achieve its objective of preventing the transition would be to affirmatively prohibit the transfer (a result that has nearly no likelihood of occurring).

In short, I read this language as disabling NTIA from engaging in discussions of the transition while not, in the end, preventing the transition itself -- a lose-lose proposition if ever there was one.  And if, to the contrary, the NTIA reads this  language as compelling renewal of the contract and preventing the transition altogether, then this will send the wrong message to the rest of the world, many of whom doubt the bona fides of American stewardship of the network.  The United States achieved a fairly successful result at NetMundial in Brazil — at least in part because the proposed IANA transition created good will.  This points in the opposite direction.