International Governance

House Judiciary Hearing on ICANN

By Paul Rosenzweig
Friday, April 11, 2014, 10:24 AM

I testified yesterday at the House Judiciary Committee hearing on the proposed transfer of the IANA function to ICANN.  You can find my testimony (and that of the other witnesses) at the committee web site.   I was struck, at the hearing, by a few items that seem worth noting:

  • The Administration's testimony was, essentially, to the effect that the transition is no big deal.  It is merely the elimination of the last vestiges of ministerial control, and has been in the works for over a decade.   As readers of the blog will know, I disagree with that view.  But more to the point, I think it is a bit self-defeating.  For if the point to make is that Congress shouldn't care because it isn't a big deal; then the counterpoint is that the Administration shouldn't care either and that, in the end, it should be agnostic over the end result.  But equally clearly, the Administration is not agnostic (nor should it be in my judgment) -- it is affirmatively for the change.  And that has to be because it thinks that it is achieving some good thing through the transition (and, again, I think I agree).  But you can't be for a good thing with rhetoric that says "it isn't really that big a deal."  I understand the politics of why the Administration wants to minimize the importance -- but that political message is inconsistent with its fundamental view of the utility of the transition.
  • Representative Nadler made an excellent point which, for me, crystallized the issue nicely.  He likened the announcement of the transition to a Request for Proposal (RFP).  You can't really judge whether or not to go forward until you've actually seen the proposal that comes from the RFP.  And, rightly, we can't really judge the transition until we see the proposal that ICANN brings forward.  But the danger, such as it is, is the perception of some that the Administration has made a pre-commitment to moving forward -- in other words that it will accept any RFP from ICANN that it receives.  To combat that perception the Administration needs to credibly and convincingly keep telling Congress and ICANN that if the proposal it receives doesn't meet its standards it will say "no."
  • Which suggests to me that the optimum way for Congress to engage in this process (if it wishes to do so) is to determine for itself what it thinks a good IANA management function would look like.  What components of governance and oversight does it think important to maintaining the openness and freedom of the network?  If it could reach consensus on that (say through a sense of Congress resolution) that consensus would, I think, significantly inform ICANN's consideration and also inform how the NTIA responds to ICANN's proposal.
  • Finally, I was struck that both the NTIA and ICANN said that the current contract termination date of September 2015 was an artificial deadline that they would disregard if work was not complete.   I'm not sure I fully credit that assertion (the political pressure to finish this sooner rather than later will be quite high) but it is the "right" answer as a matter of policy.