[Ws2-jurisdiction] Fwd: [CCWG-ACCT] Answers to some common questions being encountered by the ICANN staff

[Greg Shatan]

All,

In connection with our upcoming call, I wanted to call your attention to
this ICANN statement, and in particular, item #7.

Greg

---------- Forwarded message ----------
From: *Bruce Tonkin* <Bruce.Tonkin at melbourneit.com.au>
Date: Friday, September 9, 2016
Subject: [CCWG-ACCT] Answers to some common questions being encountered by
the ICANN staff
To: "accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>


From





https://www.icann.org/iana-stewardship-questions


Answering some of your questions on the stewardship transition

By delivering the IANA stewardship transition proposal
<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en>
to the U.S. Department of Commerce's National Telecommunications and
Information Administration (NTIA) in March, the global Internet community
executed the largest multistakeholder process
<https://www.icann.org/resources/pages/iana-accountability-participation-statistics-2015-11-04-en>
ever undertaken in Internet governance.

The transition proposal achieved the broad support thousands of Internet
stakeholders by reinforcing the current multistakeholder system and making
ICANN more accountable to Internet users around the world. The proposal
also garnered support from global representatives of industry, the
technical community, civil society groups, academics, governments and end
users.

The timely completion of the transition will help preserve the continued
openness of the Internet by entrusting its oversight with those who have
made the greatest investments in its extraordinary success so far – the
volunteer-based multistakeholder community.

Still, some questions remain about the nature of the IANA functions, ICANN,
and the likely impacts of the transition and we wanted to answer them for
you in one place.

1.    Does the transition threaten Internet freedom?

No. The United States Government's contract with ICANN does not give the
U.S. any power to regulate or protect speech on the Internet. The IANA
functions are technical – not content – based. The freedom of any person to
express his or herself on the globally interoperable Internet is in fact
enhanced by the transition moving forward. ICANN is not, has not been, and
by its Bylaws cannot become, a place for regulation of content.

Ensuring that the Internet remains open, interoperable and stable in the
long-term helps protect Internet freedom. Some believe that extending the
contract may actually lead to the loss of Internet freedom because it could
fuel efforts to move Internet governance decisions to the United Nations
(U.N.). Former Homeland Security Secretary Michael Chertoff and retired
Vice Chairman of the Joint Chiefs of Staff James Cartwright stated
<http://www.politico.com/agenda/story/2016/06/keep-internet-free-and-open-icann-000140>
that, "rejecting or even delaying the transition would be a gift to those
governments threatened by a free and open Internet."

2.    Will countries be able to censor speech on the Internet after the
transition?

No more so than they can today. Right now, there is nothing about ICANN or
its contract with the U.S. Government that prevents a country from
censoring or blocking content within its own borders. ICANN is a technical
organization and does not have the remit or ability to regulate content on
the Internet. That is true under the current contract with the U.S.
Government and will remain true without the contract with the U.S.
Government. The transition will not empower or prohibit sovereign states
from censoring speech.

Many leading civil society and advocacy groups
<https://www.accessnow.org/cms/assets/uploads/2016/05/CSstatementonIANAtransitionMay2016-1.pdf>
[PDF, 106 KB] actually argue that the transition will enhance free speech
on the Internet. Human Rights Watch, Access Now, Article19, Open Technology
Institute and Public Knowledge, support the transition because "executing
upon the IANA transition is the best way to ensure the continued
functionality of the global internet and to protect the free flow of
information so essential to human rights protection."

3.    Will ICANN be more susceptible to capture by a single entity after
the transition?

No. ICANN's multistakeholder model is designed to ensure that no single
entity, whether country, business or interest group, can capture ICANN or
exclude other parties from decision-making processes. Features of this
model include open processes where anyone can participate, decisions made
by consensus, established appeals mechanisms, and transparent and public
meetings. These elements are all reinforced in the community transition
proposal
<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en>
and have been building blocks for the free and open Internet we see today.

NTIA, along with other U.S. Government agencies and a panel of corporate
governance experts, conducted a thorough review of the transition proposal
<https://www.ntia.doc.gov/report/2016/iana-stewardship-transition-proposal-assessment-report>.
NTIA confirmed that the proposal mitigated the risk of a government or
third-party capture of ICANN after the transition. Columbia University's
John Coffee also concluded that
<http://www.newyorklawjournal.com/id=1202762978409/Adventures-in-Corporate-Governance-Guarding-the-Internet?mcode=0&curindex=0&curpage=ALL>,
"ICANN has been given so many checks and balances that it is difficult to
imagine a hostile takeover," after the transition.

4.    Will ICANN seek oversight by the U.N. to maintain its antitrust
exemption after the transition?

No. ICANN is not, and never has been exempted from antitrust laws. ICANN
has not been granted an antitrust exemption through any of its contracts
with NTIA or the U.S. Department of Commerce. No court ruling in favor of
ICANN has ever cited an antitrust exemption to support its ruling. This
past July, NTIA Administrator Larry Strickling addressed the concerns
<https://www.ntia.doc.gov/speechtestimony/2016/remarks-assistant-secretary-strickling-internet-governance-forum-usa>
about the possible antitrust liability of a post-transition ICANN and
reaffirmed that "ICANN always has and will continue to be subject to
antitrust laws."

After the transition, ICANN will have no mandate, need or reason to seek to
be overseen by another governmental or inter-governmental group for
protection. NTIA also would not allow the transition to occur if ICANN were
to replace the role of the U.S. Government with another government or
inter-governmental organization.

5.    Will governments have more control over the Internet after the
transition?

No. The transition proposal does not increase the role of governments over
the Internet or ICANN as an organization. The multistakeholder model
appropriately limits the influence of governments and intergovernmental
organizations to an advisory role in policy development. More than 160
governments actively participate as a single committee and must come to a
consensus before policy advice can be issued.

After the transition, there will be times where the ICANN Board must give
special consideration to the public policy advice of governments. However,
this will only happen when there is no objection from any government in the
committee – which includes the United States. This is a stricter
requirement than is currently in place for government advice.

In a March testimony before Congress
<http://docs.house.gov/meetings/IF/IF16/20160317/104682/HHRG-114-IF16-Wstate-PlonkA-20160317.pdf>
[PDF, 103 KB], Intel Corporation stated that the transition proposal
"strikes the right balance of including governments in a true
multistakeholder community, while not giving them increased influence over
ICANN's decisions," after the transition.

6.    Does delaying the transition by one or two years have any negative
consequences?

Yes, any delay of the transition could have significant global
consequences. The Internet is a voluntary, trust-based system. A delay
would introduce uncertainty, for businesses and other stakeholders, which
could have long-term business, social, cultural, political and economic
impacts.

This past March, U.S. Ambassador David Gross testified
<http://www.commerce.senate.gov/public/index.cfm/hearings?ID=418B1D81-1F0B-4E09-BB71-A98FBABE42B9>
that, "the clearest impact [of a delay] is on the broader, global
community. It will signal that the U.S. has changed its position and no
longer believes in a private-sector led internet and that governments will
play a primary role in making the final decision. Russia, China, and others
will welcome such a decision." In addition, the Centre for International
Governance Innovation added
<https://www.ourinternet.org/press/statement-by-gcig-regarding-iana-transition/>
to this sentiment by expressing that "[A delay will] increase distrust, and
will likely encourage some governments to pursue their own national or even
regional Internets."

7.    Will ICANN relocate its headquarters outside of the United States
after the transition?

No. ICANN will not relocate its corporate headquarters location after the
transition. The transition proposal clearly states
<https://www.ianacg.org/icg-files/documents/IANA-transition-proposal-final.pdf>
[PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to
remain unchanged." California law is the basis for the new mechanisms
created to empower the ICANN community and hold ICANN the organization,
Board and community, accountable. In addition, ICANN's Articles of
Incorporation are filed under California law, and its Bylaws state that
ICANN's headquarters are in California.

8.    Is it illegal to allow the transition to move forward without
congressional approval because it is a transfer of U.S. property?

No. ICANN is not aware of any U.S. Government property that would be
transferred as a result of the transition. In a letter to Chairman Grassley
and Chairman Goodlatte
<http://www.ntia.doc.gov/files/ntia/publications/20160810_-_ntia_response_to_grassley_goodlatte_-_iana.pdf>
[PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce
Office of General Counsel conducted a legal review of this issue and
advised NTIA that transition would not result in the transfer of U.S.
Government property, and that, in the view of the Department, the
authoritative root zone file is not U.S. Government property.

9.    Will Verisign have the ability to raise prices of.com domain names on
1 October 2016 as a result of the transition?

No. The cost of .com domains is capped at $7.85 until 30 November 2018. The
current pricing of the .com registry is defined by two separate contracts
(1) the .com Registry Agreement between Verisign and ICANN; and (2) the
Cooperative Agreement between Verisign and the Department of Commerce.
After 2018, Verisign and NTIA will have to negotiate to change the terms
for the Cooperative Agreement or agree to end the Cooperative Agreement
before discussing new pricing of the .com domain with ICANN.

In letters
<https://www.ntia.doc.gov/files/ntia/publications/2016-8-31_doj_response_to_cruz-lee-duffy.pdf>
[PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week,
the Assistant Attorney General stated that, consistent with past practices,
it is expected that NTIA will seek the advice of the U.S. Department of
Justice on any competition issues implicated by the extension of these two
contracts.

10.          Do the recent independent review process (IRP) decisions
regarding applications for new generic top level domains prove that ICANN
is not sufficiently transparent or accountable enough for the transition?

No. An IRP is an accountability mechanism used to review and resolve a
concern raised by the community over a policy decision made by ICANN. Any
result from an IRP, whether positive or negative, demonstrates that the
system of checks and balances built into the ICANN multistakeholder model
works. The IRP has been enhanced to strengthen ICANN's commitment to employ
open, transparent, bottom-up, multistakeholder processes after the
transition.

11.          Does ICANN have an operational relationship with the Chinese
government?

No. ICANN does not have any operational relationship with the Chinese
Government. ICANN's engagement center in China is one of seven around the
world. The presence of an ICANN engagement center or operational hub within
a country does not imply any level of support for the nation's government
or its policies.
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