September 30, 2016, marked the expiration of a contract between the US government and the Internet Corporation for Assigned Names and Numbers (ICANN) to carry out the Internet Assigned Numbers Authority (IANA) functions. In simpler, acronym-free terms, Washington’s formal oversight over the Internet’s address book has come to an end with the expiration of this contract, with control now being passed on to the “global multistakeholder community”.
ICANN was incorporated in California in 1998 to manage the backbone of the Internet, which included the domain name system (DNS), allocation of IP addresses and root servers. After an agreement with the US National Telecommunications and Information Administration (NTIA), ICANN was tasked with operating the IANA functions, which includes maintenance of the root zone file of the DNS. Over the years Washington has rejected calls to hand over the control of IANA functions, but in March 2014 it announced its intentions to do so and laid down conditions for the handover. Many suspect the driving force behind this announcement to be the outcry following Edward Snowden’s revelations of the extent of US government surveillance.
The conditions laid down by the NTIA were met, and the US government accepted the transition proposal, amidst much political pressure and opposition, most notably from Senator Ted Cruz.
This transition is a step in the right direction, but in reality, it changes very little as it fails to address two critical issues: Of jurisdiction and accountability.
Jurisdiction is important while considering the resolution of contractual disputes, application of labour and competition laws, disputes regarding ICANN’s decisions, consumer protection, financial transparency, etc. Many of these questions, although not all, will depend on where ICANN is located. ICANN’s new bylaws mention that it will continue to be incorporated in California, and subject to California law just as it was pre-transition. Having the DNS subject to the laws of a single country can only lend to its fragility. ICANN’s US jurisdiction also means that it is not free from the political pressures from the US Senate and in turn, the toxic effect of American party politics that were made visible in the events leading up to September 30.
Another critical issue that the transition does not address is that of ICANN accountability. Post-transition, ICANN’s board will continue to be the ultimate decision-making authority, thus controlling the organisation’s functioning, and ICANN staff will be accountable to the board alone.
To put things in perspective, look at the board’s track record in the recent past. In August, an Independent Review Panel (IRP) found that ICANN’s board had violated ICANN’s own bylaws and had failed to discharge its transparency obligations when it failed to look into staff misbehaviour. Following this, in September, ICANN decided to respond to such allegations of mismanagement, opacity and lack of accountability by launching a review. The review however, would not look into the issues, failures and false claims of the board, but instead focus on the process by which ICANN staff was able to engage in such misbehaviour. This ironically, will be in the form of an internal review that will pass through ICANN staff — the subjects of the investigation — before being taken up to the board.
At best, the transition is symbolic of Washington’s oversight over ICANN coming to an end. It is also symbolic of the empowerment of the global multistakeholder community. In reality, it fails to do either meaningfully.
Vidushi Marda is programme officer, Centre for Internet and Society
The views express are personal