On 1st October 2016, Assistant Secretary Lawrence E. Strickling, Administrator of the NTIA, made this statement: “The federal court in Galveston, Texas denied the plaintiffs’ application for declaratory and injunctive relief. As of October 1, 2016, the IANA functions contract has expired.” This chosen brevity adds strength to the NTIA statement, contrasting with the loosely worded and often misleading rhetoric of some Congressmen who were keen to oppose the Transition of Oversight of the IANA Functions. In the period leading up to the US Presidential Election (8 November 2016), this topic which would normally be a simple administrative task, became a pawn in a wider political game. The landmark ruling in Galveston by Judge George Hanks was a rebuttal of the civil action by the Attorneys General of Arizona, Nevada, Oklahoma and Texas, who requested “temporary relief, enjoining and/or staying the expiration of the period of performance under the IANA Contract, which is currently set to expire on September 30, 2016”.
Having failed to win the Republican Primary, perhaps Senator Ted Cruz latched onto the IANA Contract as a way of staying in the limelight, with his sights on the 2020 Presidential Election. On 14 September, he and others organized a Senate hearing, to which they summoned witnesses including the Administrator of the NTIA. For an Internet user outside the USA, the title of the Hearing was misleading, “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet”: can the USA really claim to be the protector of Internet freedom, just a couple of years after Edward Snowden revealed the massive surveillance conducted by the US against its own citizens? And was the US really called upon to relinquish “oversight of the Internet”, rather than just “oversight of the IANA Functions”? Some of the remarks by Senators Ted Cruz and Chuck Grassley reveal a stark ignorance of how the global Internet operates, unless their feigned ignorance was intentionally misleading.
This Hearing did not support the claim that the Internet is US Property. On the contrary, the US GAO (General Accountability Office) stated, in its Decision dated 12 September 2016: “We find it is unlikely that either the domain name system or the authoritative root zone file (the “address book” for the top-level domain) is U.S. Government property under Article IV. We also find the Government may have certain data rights, and has limited intellectual and tangible property, all of which constitute Article IV property, but that property will be retained and not disposed of in connection with the transition. Finally, the Government has a contractual right to continued performance by the entities carrying out the IANA functions and related services. That right, which also constitutes U.S. Government property, would be disposed of if NTIA terminates the agreements rather than allowing them to expire, but NTIA has the requisite authority to dispose of this Government property interest.”
For an Internet user outside the USA, say in Europe, several lessons can be learned from the huge community effort for the Transition of Oversight of the IANA Functions, and battles waged against it:
- Motivation and role of the United States. The US Administration and the global Internet community proposed some form of “transition” as early as 1998. It has taken 18 years from formulation to implementation: what happened in between? Other priorities retained Washington’s attention: resisting the call by some parties for an inter-governmental solution to Internet governance, played out in ITU; a new phase of US withdrawal into their own world, perhaps a collective fatigue of the sole remaining superpower? However, and at least viewed from Europe, the proximate cause of Washington’s renewed advocacy in 2014 was the revelation by Edward Snowden, that same year, of the extent of US mass surveillance worldwide, as well as on its own citizens: the US had to recover its image as a trustworthy ally. This does not in any way diminish the merits of Larry Strickling and the NTIA team, the Chair, Board and Staff, of ICANN, the Chairs and members of the ICG, and all the contributors to the Transition of Oversight: this was a good example of what a multi-stakeholder community can achieve.
- Validation of the multi-stakeholder approach. The natural tendency of sovereign states to consider themselves as the sole legitimate stewards of the national interest, led them to believe that the same would apply in the novel area of Internet governance. It took many consultations to get capitals to even consider the presence of other categories alongside themselves: Tunis Agenda, IGF, other fora and events played a major role in helping governments to accept this way of dealing with global issues which, by definition, reach beyond national borders and jurisdictions. The Transition of Oversight of the IANA Functions is not a globalization of ICANN, nor of PTI (Post-Transition IANA), which both remain incorporated in the US. It is a limited but significant change in the way we approach the Internet as a collective ressource, for which there is a collective responsibility.
- Remaining questions:
- Will the next US Administration thoroughly implement the Transition of Oversight of the IANA Functions? It is no longer held hostage by some budget appropriation, the ruling by Judge George Hanks in Galveston is not being (cannot be?) appealed, and the Presidential campaign is treating US voters to so many other distractions. So, at this stage, there seems to be no administrative or political obstacle to implementation.
- One of many arguments in favour of the Transition of Oversight was that, WITHOUT it, we would draw dangerously close to a fragmentation of the Internet. While rejoicing that the IANA Contract was allowed to expire, we should remain conscious that geopolitics might some day favour a fragmentation of the Internet, for reasons not directly related to the Transition of Oversight. The worldwide Internet community must remain vigilant to any weakening of the features which make today’s Internet unique, reliable and global.