[Chapter-delegates] Internet Society Applauds US Senate for Saying #yestoIANA

Fri Sep 23 04:05:21 PDT 2016

Dear Steve,

Thank you for this. I’m well aware of the contract between the US government and Verisign regarding the authoritative root server, and the implications of that contract. I didn’t mention it in my message because I didn’t think that it was worth going into that level of detail to make my point, which is that the jurisdiction issue is a real issue.

Regarding how easy it would be to ignore the wishes of the US government , I fully agree that it would not be easy, and I said as much in my message. What you are correctly pointing out is that, in addition to what I said, there is the contract between the US government and Verisign regarding the authoritative root server, and the US could decide to maintain that contract, and its ability to approve any changes to the root zone file, quite independently from ICANN (at least in theory, but things might get messy in practice). You also correctly point out that there are other contractual agreements that would be hard to change unilaterally.

Regarding the contract between ICANN and NTIA, I don’t see any clause that would oblige ICANN to continue if it does not want to, even if the US government wants to renew the contract.  I’m not saying that ICANN should refuse to continue, but I am saying that I don’t see a legal obligation for it to continue.  To be clear, I am referring to the document below, but perhaps I missed some clause:

  http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf 

Best,

Richard

From: Steve Crocker [mailto:steve.crocker at board.icann.org] 
Sent: vendredi, 23. septembre 2016 12:03
To: Richard Hill
Cc: Steve Crocker; Greg Wood; chapter-delegates at elists.isoc.org
Subject: Re: [Chapter-delegates] Internet Society Applauds US Senate for Saying #yestoIANA

Richard,

There are some critical inaccuracies in your note.  The authoritative copy of the root zone is maintained by Verisign under a Cooperative Research Development Agreement with NTIA.  ICANN receives requests from TLD operators for changes to their portions of the root zone and, after careful checking, forwards those requests to both NTIA and Verisign.  NTIA then authorizes the changes and Verisign edits the authoritative copy of the root zone.  Every twelve hours Verisign sends the root zone to each of the root server operators.

NTIA and ICANN have a contract under which ICANN performs the above services.  The current contract started in October 2012.  It was written as a three year contract with two optional extensions, each two years long and each exercisable unilaterally by NTIA.  The first extension was subsequently divided into two one year extensions.  A year ago NTIA exercised the first of these one year options.  Hence the current contract expires next week unless NTIA exercises the second one year extension.  (Other changes are also possible with mutual agreement, of course.)

To summarize using your phrasing, ICANN entered into a legal agreement with the U.S. Government.  NTIA has indicated its intention not to exercise subsequent options, and a handful of legislators have tried to insert language into the upcoming budget bill that would force NTIA to extend the contract.

More to the point, the update and distribution of the root zone involves more than ICANN.  Verisign and the several root server operators are major pieces of the overall system.  It would not be as easy as you’ve suggested to cast off the existing contractual arrangements.

A lot of people in all portions of the community have worked diligently to move this process along in a constructive fashion.  The results have been heartening and we’re almost there.

Steve

On Sep 23, 2016, at 3:38 AM, Richard Hill <rhill at hill-a.ch> wrote:

I think that all the attention being paid to what is just dirty US politicking is obscuring what I consider to be the real question: why do we care what the US Congress, and/or the US government does?

There has never been any legal obligation for ICANN to enter into an agreement with the US government. The IANA contract is in fact a purchase order issued by the US government for services which ICANN voluntarily agreed to supply at no cost, see:

 <http://www.ntia.doc.gov/page/iana-functions-purchase-order> http://www.ntia.doc.gov/page/iana-functions-purchase-order

And in particular:

   <http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf> http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf

If the US government were to decide to renew the Purchase Order after 30 September, ICANN would not be legally obliged to agree to it.  Legally, ICANN could decide not respond to the purchase order, and continue to provide the IANA functions as it has since its creation.

As we all know, the ICANN community, the RIRs, the IETF, etc. all support ICANN continuing to provide the IANA functions, under the new bylaws.

So who cares what the US government does or does not do?

Apparently everybody.  But why?  No doubt because everybody knows that, in practice, the US government can take steps to prevent ICANN from continuing to provide the IANA function independently if the US government does not want it to be independent.

And this because ICANN is based in the US and therefore subject to US jurisdiction.  

Anybody that doubts that the US government could make trouble if ICANN were to declare independence against the wish of the US government might wish to recall what happened back in 1998 when Jon Postel tried to make IANA independent despite the US government’s unilateral assertion of control. The story is recounted in Milton Mueller’s book Ruling the Root and I have heard it myself from various reliable sources.  Essentially, it was made clear to Jon that it wasn’t worth the risk.  (The versions that I have heard are that Jon did that because he was disappointed that the US government had rejected the IAHC recommendations and decided to impose a different solution: ICANN, but I didn’t get that from Jon himself, so perhaps it is not true). A summary of this story is at:

   <https://en.wikipedia.org/wiki/Jon_Postel#DNS_Root_Authority_test.2C_U.S._response> https://en.wikipedia.org/wiki/Jon_Postel#DNS_Root_Authority_test.2C_U.S._response

So the fact that ICANN is in the US does make a difference. Some think that it is good that the US in is the US, others disagree. But I don’t see how anybody could say that it makes no difference.  I do agree that the issue arises with respect to any particular national jurisdiction, but recall that various proposals have been made for ICANN to be given some form of jurisdictional immunity. And this does not necessarily require a treaty. It can be done by any state, including the US, as a unilateral matter.

Best,

Richard

From: Chapter-delegates [ <mailto:chapter-delegates-bounces at elists.isoc.org> mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of Greg Wood
Sent: vendredi, 23. septembre 2016 00:45
To:  <mailto:chapter-delegates at elists.isoc.org> chapter-delegates at elists.isoc.org
Subject: [Chapter-delegates] Internet Society Applauds US Senate for Saying #yestoIANA

Hello,

For your reference, this text has been published on the Internet Society website and is being shared broadly.

-Greg

 <https://www.internetsociety.org/news/internet-society-applauds-us-senate-saying-yestoiana> https://www.internetsociety.org/news/internet-society-applauds-us-senate-saying-yestoiana

Internet Society Applauds US Senate for Saying #yestoIANA

The Internet Society applauds Senators on both sides of the aisle for evaluating the transition of the oversight of the Internet Assigned Numbers Authority (IANA) functions to the global Internet community on the facts rather than inaccurate rhetoric. We thank Majority Leader McConnell and his staff for recognizing the implications of blocking the multistakeholder consensus of the ICANN community on the transition.

It is important for Congress to ensure that any final Continuing Resolution does not delay or block the transition. A delay could actually increase – not decrease – the possibility of international government control of the Internet and will signal to the global community that we do not believe in the multistakeholder model of governance. 

This transition has been built upon a bipartisan consensus for almost twenty years through multiple Administrations. The time has finally arrived to remove the last direct United States governmental role in ICANN's operation. The Internet Society believes that the transition will further strengthen the Internet as a stable, resilient and secure tool for empowering billions of people across the globe for decades to come. We urge the Congress to say  <https://www.internetsociety.org/america-keeps-its-promises-yestoiana> #yestoIANA.

Kathryn Brown
President & CEO

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