IANA transition and ICANN accountability

The historical contractual relationship between the US government and ICANN on the performance of the key Internet domain name functions entered a new phase with the Department of Commerce’s National Telecommunications and Information Administration’s (NTIA) announcement of March 2014 of its intent to delegate its oversight role to a global multistakeholder community. This announcement triggered the so-called IANA stewardship transition process, which expanded over a period of more than two years, and formally concluded on 1 October 2016, with the expiration of the IANA functions contract between ICANN and the US government, and the transition of the IANA functions stewardship to the gloabal Internet community. The transition process has also triggered a discussion on the accountability of ICANN. While the minimum accountability pre-requisites for the transition to happen have been put in place, these discussions continue with the overall aim of strenghtening ICANN’s accountability towards the broader community.

Context

The Internet Corporation for Assigned Names and Numbers (ICANN) is a US-based not-for-profit corporation whose main role is to coordinate the global Internet’s systems of unique identifiers (mainly domain names, Internet protocol (IP) numbers, and IP parameters), and to define policies for how these identifiers should run. ICANN’s role in the coordination of Internet’s technical resources (also known as the ‘IANA functions’) is carried out on the basis of a contract with the US government (USG), which is set to expire on 30 September 2016.

In the framework of this contract, the USG has an overall stewardship role over the Domain Name System (DNS) (which translates domain names into IP addresses): any major change in the DNS root zone (e.g. the introduction of a new top level domain such as .bank), once decided by ICANN, is passed to the USG (namely, the National Telecommunication and Information Administration - NTIA) for validation, before being implemented. In practice, what NTIA does is to simply verify if ICANN’s decision was made in line with its policies, and to then transmit the change to Verisign (the maintainer of the root zone) for implementation. There is no record of cases when NTIA has not validated a decision made by ICANN with regard to root zone changes.

Developing the IANA transition proposal

After issuing a Scoping Document (8 April 2014), ICANN published the Process to Develop the Proposal and Next Steps (6 June 2014), following a month-long public consultation. This led to the formation of the IANA Stewardship Transition Coordination group (ICG), comprising 30 members serving as liaisons to 13 different stakeholder communities. The ICG developed the assembly and finalisation process of the IANA Stewardship Transition Proposal for submission to the NTIA at the end of process, expecting proposals from three communities directly affected by the transition, according to a detailed timeline:

Domain Names community (naming-related functions): proposal to be issued by Cross Community Working Group (CWG-Stewardship), that is GNSO and ccNSO. Status: proposal submitted (25 June 2015).
Numbering Resources community (functions related the management and distribution of numbering resources): proposal by the Consolidated RIR IANA Stewardship Proposal Team (CRISP team), that is NRO, ASO, and RIRs. Status: the community submitted its proposal (15 January 2015).
Protocol Parameters community (functions related to Internet Protocol Parameters): proposal by IANAPLAN Working Group, that is IETF and IAB. Status: the community submitted its proposal (6 January 2015)

The Numbering Resources and Protocol Parameters communities submitted their proposals in January 2015. CWG-Stewardship published its first draft proposal on 1 December 2014, which was open for comments until 22 December 2014. Significant input led the CWG-Stewardship to reconsider its original draft with one model (Contract Co), and instead propose four models, in a discussion document published right before ICANN 52: (i). Contract Co. and (ii). External Trust models (external); (iii). ICANN Internal Bylaw, and (iv). Internal Trust models (internal) (the models are also described here).

In June, the chartering organisations of CWG-Stewardship – GAC, SSAC, GNSO, ccNSO, and ALAC – approved the community’s final proposal (dated 11 June 2015), which was then submitted to the ICG, on 25 June. On 8 July, during the US House of Representatives' Energy and Commerce Committee hearing on Internet Governance Progress After ICANN 53, ICANN CEO Fadi Chehade and NTIA’s Assistant Secretary Larry Strickling described the developments so far and addressed the representatives' concerns (view the recording of the hearing and read the testimonies). Meanwhile, on 23 June, the House approved the Domain Openness Through Continued Oversight Matters (DOTCOM) Act to ensure congressional oversight over any proposed transition.

In July 2015, it becomes obvious that the transition process would extend until July 2016 (in the best case scenario), as noted by the ICG on 6 July and CCWG-Accountability on 3 July, in their replies to the NTIA letter of 6 May. As a consequence, on 17 August 2015, NTIA's Lawrence Strickling announced NTIA's intention to extend the IANA contract with ICANN for one year to 30 September 2016, with options to extend the contract for up to three additional years beyond 2016, if needed.

In August 2015, at the request of NTIA, ICANN and VeriSign delivered a proposal outlining a possible modality for removing the NTIA’s administrative role associated with root zone management.

The ICG synthesised the three proposals from the Naming Community, the Numbering Resources and Protocol Parameters communities, and on 29 October announced that it had finalised the IANA Stewardship Transition Proposal, with the exception of one outstanding item. The IGC noted that 'the names portion of the proposal is conditional on ICANN-level accountability mechanisms currently under development in the Cross Community Working Group on Enhancing ICANN Accountability (CCWG). Before sending this proposal to the NTIA via the ICANN Board, the ICG will secure confirmation from the CWG that its accountability requirements have been met.' This transition proposal compiled by the ICG reflected the proposals submitted by the three operational communities:

The 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 for names, in contract with ICANN. The legal jurisdiction in which ICANN resides is to remain unchanged.
Create a Customer Standing Committee (CSC) responsible for monitoring the operator’s performance according to the contractual requirements and service levelexpectations.
Establish a multistakeholder IANA Function Review process (IFR) to conduct reviews of the performance of the naming functions.

The Numbers community proposed that:

ICANN continue to serve as the IANA Functions Operator for number resources and perform those services under a contract with the five Regional Internet Registries(RIRs).
A contractual Service Level Agreement (SLA) be established between the Regional Internet Registries and the IANA Numbering Services Operator.
A Review Committee (RC) be established comprising community representatives from each region to advise the RIRs on the IANA Functions Operator’s performance
and adherence to identified service levels.

The Protocol parameters community proposed:

That the IANA protocol parameters registry updates continue to function day-to-day, as they have been doing for the last decade or more.
To continue to rely on the system of agreements, policies, and oversight mechanisms created by the IETF, ICANN, and IAB for the provision of the protocols parameters-related IANA functions.

Enhacing ICANN's accountability

The change in the historic contractual relationship with the US government also triggered a broader accountability discussion within ICANN, responding to a set of concerns from the community related to the current and future role of ICANN. Following the accountability discussions at ICANN 49, in May 2014 ICANN published a proposed process on Enhancing ICANN Accountability, inviting comments from the ICANN community (6 May-27 June 2014, and again 6-27 September 2014) and suggesting the formation of an ICANN Accountability Working Group. The Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) was formed in October 2014 and focuses on two parallel work streams:

Work stream 1, to be completed before the IANA Stewardship Transition, covering accountability aspects that represent pre-requisites for the IANA transition;
Work stream 2, which can extend beyond the transition.

Several working group meetings have preceeded ICANN's regular meetings. CWG-Stewardship has also been heavily involved in the accountability. Legal counsel has been sought by the working groups throughout the process. The first draft report of CCWG was published on 4 May 2015 and was followed by a public comment period.

The work on accountability also moved forward with a face-to-face meeting in Buenos Aires preceding ICANN 53, in which the accountability architecture proposed (based on four building blocks: an empowered community, the Board, the Bylaws and the Independent Review Process) was discussed. Subsequently, a second draft report was publised on 3 August, and was again followed by a public comment period.

Discussions continued, both online, as well as during a CCWG face-to-face meeting in Los Angeles, in September 2015, and at the ICANN54 meeting in Dublin, in October 2015. Following these discussions, the CCWG-Accountability's third draft proposal was published on 30 November, and a new public comment period ran until to 21 December 2015. This third draft proposal outlines 12 main recommendations meant to ensure ICANN's accountability towards the broader community:

Recommendation #1: Establishing an Empowered Community for Enforcing Community Powers
Recommendation #2: Empowering the community through consensus: engage, escalate, enforce
Recommendation #3: Redefining ICANN's Bylaws as 'Standard Bylaws' and 'Fundamental Bylaws'
Recommendation #4: Ensuring community involvement in ICANN decision-making: seven new Community Powers
Recommendation #5: Changing aspects of ICANN's Mission, Commitments and Core Values
Recommendation #6: Reaffirming ICANN's Commitment to respect internationally recognised human rights as it carries out its mission
Recommendation #7: Strengthening ICANN's Independent Review Process
Recommendation #8: Fortifying ICANN's Request for Reconsideration Process
Recommendation #9: Incorporation of the Affirmation of Commitments
Recommendation #10: Enhancing the accountability of Supporting Organizations and Advisory Committees
Recommendation #11: Board obligations with regards to Governmental Advisory Committee Advice (Stress Test 18)
Recommendation #12: Committing to further accountability work in Work Stream 2

On 14 December 2015, the ICANN Board of Directors submits its comments on the Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations.

Following the public comment period on the November proposal, discussions continued within the CCWG and, on 23 February, a Supplemental Final Proposal on Work Stream 1 Recommendations was submitted for approval to the CCWG chartering organisations, as an intermediary step preceding the submission of the report to the ICANN Board of Directors. This new proposal keeps the broad 12 recommendations outlined in the November draft, but brings changes to the way in which (some of) these proposals are expected to be implemented.

The most important element of the proposal is the creation of a new entity (called ‘empowered community’) that would have the ability to enforce a set of ‘community powers’ to be entrusted to the multistakeholder community. The new entity, which is to be organised as a California unincorporated association, will be given the role of ‘sole designator’ of ICANN Board members, being able to appoint and remove directors. It is expected that the ‘empowered community’ will be constituted of all existing supporting organisations within ICANN, as well as two advisory committees (the At Large Advisory Committee - representing end users, and the Governmental Advisory Committee).

With regard to the decision making process within ICANN, the proposal requires the ICANN Board to engage in an extensive engagement process with the multistakeholder community before making decisions on: strategic and operating plans, IANA budget, modifications to ICANN bylaws or articles of incorporation, and reviews of the IANA functions. If not satisfied with the results of this process, the empowered community may initiate a so-called ‘escalation process’ through which it would exercise one of its powers:

rejecting ICANN budgets, IANA budgets or strategic/operating plans
rejecting changes to ICANN standard bylaws
approving changes to fundamental bylaws and the articles of incorporation, and approving ICANN’s sale or other disposition of all or substantially all of ICANN’s assets
removing individual ICANN Board Directors
recalling the entire ICANN Board
launching a community Independent Review Process (the aim of this process is to ensure that ICANN only acts within the scope if its limited technical mandate and complies with its bylaws and articles of incorporation)
rejecting ICANN Board decisions relating to reviews of the IANA functions.

As a last resort mechanism, if the Board does not comply with a decision of the community regarding the removal of individual directors or the recall of the entire Board, the community can bring a claim in a court that has jurisdiction to force compliance with the decision.

One sensitive aspect of the proposal is related to the role of governments within the ‘empowered community’. While at that point the Governmental Advisory Committee had not made a decision as to whether it wishes to participate as a decisional participant in the empowered community, the proposal states that, if governments decide to take up such a role, they cannot exercise it when the community challenges the way in which the ICANN Board has implemented GAC consensus advice. This has triggered the discontent of several GAC members, who have filled a minority statement with respect to the third CCWG proposal, expressing their concerns over this matter.

On 29 February 2016, CWG-Stewardship confirms that the CCWG-Accountability supplemental final proposal meets the requirements of the CWG-Stewardship Final Transition Proposal.

After careful reviews, the majority of the the CCWG chartering organisations (ICANN's supporting organisations and advisory committees) decided to approve the supplemental final proposal on accountability recommendations. The Governmental Advisory Committee adopted a more nuanced position, saying that it does not object to the proposal being transmitted to the ICANN Board of Directors. Details here.

On 10 March, in the context the ICANN55 Marrakech meeting, the CCWG Accountability submits its supplemental final proposal on accountability recommendations to the ICANN Board. On the same day, the ICANN Board of Directors submits the 'plan to transition stewardship of key Internet functions' to the US Government. The plan includes both the IANA stewardship transition proposal and the supplemental final proposal on ICANN accountability recommendations.

On 11 March, NTIA acknowledges receipt of the plan to transition stewardship of key Internet functions, and, on 16 March 2016, it announces that it contracted the Berkman Centre at the Harvard College to perform an independent review of the proposals and submit a report no later than 30 June. One day after, on 17 March 2016, the Subcommittee on Communications and Technology in the US Congress hold a hearing on 'Privatizing the Internet Assigned Numbers Authority'.

Following the submission of the report on accountability recommendations under Work Stream 1, the ICANN community started to look into modalities for implementing the initial recommendations, as well as into an additional set of recommendations on issues such as: accountability of ICANN staff, accountability of ICANN constituencies, and jurisdictional aspects. A call for volunteers to contribute to this work (also known as 'work stream 2') was launched in late March. Earlier this month, officials in the US government announced that, as the government reviews the IANA stewardship transition proposal and the accountability proposal, it expects ICANN to adopt the bylaw changes that are required for their implementation. Work stream 2 was luanched with a full-day meeting of the working group, on 26 June (in the context of the ICANN56 meeting). The new areas of work include, among others: additional transparency considerations, diversity across ICANN, accountability of ICANN staff, accountability of supporting organisations and advisory committees, a Framework of Interpretation on respecting human rights within ICANN’s mission and scope, expanding the list of jurisdictions in ICANN’s contracts. etc.

Steps towards the transition

Following the submission of the two proposals to the US goverment, the ICANN community has moved its focus on work that must be completed in order for the IANA stewardship transition to take place. This work has been divided by ICANN in three implementation tracks:

root zone management: projects relating to changes to the root zone management system, parallel testings, and the development and execution of an agreement with Verisign as the root zone maintainer.
stewardship transition: projects to prepare relationship documentations with the operational communities, and the creation and operationalisation of a Post-Transition IANA (PTI) entity and other mechanisms envisioned in the transition proposal.
accountability enhancements: projects to implement enhancements to ICANN’s accountability mechanisms, as outlines in the accountability proposal (including with regad to the operationalisation of the new community powers).

On 17 March 2016, the Internet Number Community (represented by the five Regional Internet Registries) published a revised draft service level agreement for the IANA numbering services. The SLA is meant to replace the current agreement between ICANN and the US government over the performance of the IANA numbering functions. On 8 April, ICANN and Verisign announced the start of a ‘parallel testing’ of the root zone management system. The test will run for 90 days and it is intended to verify the integrity of the data contained in the root zone file following the transition of the IANA functions stewardship. The parallel testing period will be used to confirm that the current root zone management system and the parallel test version (that has had the NTIA authorization step removed) produces identical output for every root zone file published. An updated version (v5.1) of the Service Level Agreement (SLA) for the IANA numbering services was published by the Internet Number Community on 20 April. The RIRs noted that expect to have this SLA signed at the same time frame as the rest of the accountability measures approved by ICANN.

In one significant step towards the transition, a draft set of new ICANN bylaws was developed by the ICANN legal team and the independent counsel hired to advise the two community working groups that developed the IANA stewardship transition proposal on naming related functions and the proposal of enhancing ICANN’s accountability. The draft bylaws are intended to reflect the changes necessary as a result of the recommendations contained in the IANA stewardship transition proposal and the accountability proposal, which were transmitted to the US Government in early March. A public comment period on these draft bylaws was launched on 21 April, and stayed open until 21 May. On 27 May, the ICANN Board adopted the new ICANN bylaws, which were then sent to NTIA, to be considered during the administration's evaluation of the transition and accountability proposals. The Board also approved for signature the Regional Internet Registries (RIR) Service Level Agreement and the Internet Engineering Task Force (IETF) Memorandum of Understanding Supplemental Agreement. Both documents were recommended by the final IANA Stewardship Transition Proposal. On the same date, ICANN launched a public comment period on a set of draft restated Articles of Incorporation. The revised Articles of Incorporation are aimed to be consistent with the new ICANN bylaws.

On 9 June, NTIA announced that the IANA stewardship transition proposal meets the criteria necessary to complete the privatisation of the IANA functions. Details are available in the assessment report.

On 28 June, ICANN announced that it had completed the discussions and negotiations with Verisign for the root zone maintainer services agreement (RZMA). The agreement anticipates the release of Verisign from root zone management obligations by NTIA; it therefore sets the framework for Verisign to continue to perform the root zone management functions on the basis of a commercial contract with ICANN. The RZMA establishes, among others, a set of service level requirements for Verisign to process, edit, generate, and publish the root zone file.

On 29 June, ICANN and the Regional Internet Registries signed the Service Level Agreement (SLA) for the IANA numbering services during the ICANN56 meeting. The SLA sets out the arrangements for the provision, by ICANN, of IANA numbering services, after the IANA stewardship transition takes place. The agreement will enter into force at the time of the transition. The Memorandum of Understanding (MoU) Supplemental Agreement between ICANN and IETF for the performance of the protocol parameters functions was also finalised. The two documents will enter into force on the date of the transition.

On 1 July, ICANN has launched a public comment proceeding seeking input on the Draft PTI Articles of Incorporation. These were developed to meet the recommendations in the IANA stewardship transition proposal regarding the creation of PTI as an affiliate of ICANN to perform the naming-related IANA functions. ICANN also intends to subcontract the performance of the numbering and protocol parameter-related IANA functions to PTI. Few days later, on 8 July, another public consultation is launched on additional draft PTI governance documents: PTI Conflict of Interest Policy, PTI Board Code of Conduct, and PTI Expected Standard of Behaviour. The draft PTI bylaws are also put for public comment on 12 July. The draft PTI Articles of Incorporation were approved by the ICANN Board on 9 August. A draft IANA Naming Function Agreement is published for public comment on this proposal on 10 August; the agreement contains Service Level Expectations for the performance, by the Post Transition IANA, of the IANA naming functions.

Meanwhile, the 90-day parallel testing period if the Root Zone Management System (RZMS) is completed, ICANN announcing that, during the test, no unexplained differences were found between the production RZMS (the currently running version) and the parallel test version of the RZMS, which has the US government authorization step removed. The test confirms that the production RZMS and parallel test system produce an identical output for every root zone file published, which was a key step to ensuring the continued security and stability of the Internet's root zone post transition.

On 11 August, ICANN announces that Post Transition IANA has been incorporated as a legal entity, under the name Public Technical Identifiers (PTI), and it will start performing the IANA functions upon the successful completion of the transition process. On 12 August, the creation of two committees required for the IANA stewardship transition was announced: the Customer Standing Committee (CSC), which will perform the oversight of the performance of the IANA naming function, thus replacing the US government (the National Telecommunications and Information Administration) in this role; and the Root Zone Evolution Review Committee (RZERC) will be responsible for reviewing proposed architectural changes to the content of the root zone, the systems used in executing changes to the root zone, and the mechanisms used for the distribution of the root zone.

Following a request from the US government, ICANN submits an IANA stewardship transition implementation plan, on 12 August, confirming that all remaining tasks in support of the transition will be completed before 30 September, the date of expiration of the IANA functions contract. After reviewing the plan, NTIA informs ICANN that, barring any significant impediment, it intends to allow the IANA functions contract to expire as of 1 October.

On 31 August, the US government sends ICANN a preliminary notice of its intent to extent the IANA functions contract for another year. While underlying the fact that the government still intends to allow the contract to expire as of 1 October, the notice is aimed to preserve the government’s right to extend the contract, should ‘any significant impediment’ appear by that date.

In the lead-up to the expiration of the IANA functions contract between the US government (USG) and ICANN, on 30 September end of day, supporters and opposers of the USG relinquishing its stewardship role intensively advocated their positions. On 28 September, state attorneys general in Arizona, Texas, Oklahoma, and Nevada filed a lawsuit asking a federal district court to freeze the transition. The plaintiffs asked for a temporary restraining order preventing the contract to expire on the set date, as well as for a permanent injunction requiring the USG to ‘refrain from taking steps to cede federal stewardship of the Internet unless pursuant to Congressional approval’. Two of the arguments invoked in the complaint are along the lines of those previously raised by opposers of the transition: that terminating the USG’s authority to validate changes to DNS root zone poses a risk to freedom of speech online, and that the IANA functions contract involves US government property, which can only be disposed of with Congress approval. Following a court hearing held on the very last of the contract - 30 September - a Texas judge denied the motion for a temporary restraining order, thus allowing the transition to proceed.

On 1 October, the IANA functions contract between ICANN and NTIA expires, and the stewardship over the IANA functions is transitioned to the global community.

Actors and Resources

Internet Corporation for Assigned Names and Numbers – ICANN coordinates the Internet Assigned Numbers Authority (IANA) functions, which are key technical services critical to the continued operations of the Internet's underlying address book, the Domain Name System (DNS). Read more

National Telecommunications and Information Administration – The NTIA, located within the US Department of Commerce, is the Executive Branch agency that is principally responsible by law for advising the President on telecommunications and information policy issues in the United States. Read more

Also: Domain Names community (CWG-Stewardship) | Numbering Resources community | Protocol Parameters community | Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)