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Derived From: Lennard G. Krugarm, Internet Governance and the Domain Name System: Issues for Congress, Congressional Research Service May 23, 2014

The United States government has no statutory authority over ICANN or the domain name system. However, because the Internet evolved from a network infrastructure created by the Department of Defense, the U.S. government originally owned and operated (primarily through private contractors) many of the key components of network architecture that enabled the domain name system to function. In the early 1990s, the National Science Foundation (NSF) was given a lead role in overseeing domain names used in the civilian portion of the Internet (which at that time was largely comprised of research universities). By the late 1990s, ICANN was created, the Internet had expanded into the commercial world, and the National Telecommunications and Information Administration (NTIA) of the Department of Commerce (DOC) assumed the lead role.

A 1998 Memorandum of Understanding between ICANN and the DOC initiated a process intended to transition technical DNS coordination and management functions to a private-sector not-for-profit entity. While the DOC plays no role in the internal governance or day-to-day operations of ICANN, the U.S. government, through the DOC/NTIA, retains a role with respect to the DNS via three separate contractual agreements. These are:

By virtue of those three contractual agreements, the United States government—through DOC/NTIA—exerts a legacy authority and stewardship over ICANN, and arguably has more influence over ICANN and the DNS than other national governments.

While NTIA is the lead agency overseeing domain name issues, other federal agencies maintain a specific interest in the DNS that may affect their particular missions. For example, the Federal Trade Commission (FTC) seeks to protect consumer privacy on the Internet, the Department of Justice (DOJ) addresses Internet crime and intellectual property issues, and the Department of Defense and Department of Homeland Security address cybersecurity issues. However, none of these agencies have legal authority over ICANN or the running of the DNS.

Affirmantion of Committments

On September 30, 2009, DOC and ICANN announced agreement on an Affirmation of Commitments (AoC) to “institutionalize and memorialize” the technical coordination of the DNS globally and by a private-sector-led organization.5 The AoC replaced the previous Memorandum of Understanding and subsequent Joint Project Agreement between DOC and ICANN. It has no expiration date and would conclude only if one of the two parties decided to terminate the agreement.

Under the AoC, ICANN committed to remain a not-for-profit corporation “headquartered in the United States of America with offices around the world to meet the needs of a global community.” According to the AoC, “ICANN is a private organization and nothing in this Affirmation should be construed as control by any one entity.” Specifically, the AoC called for the establishment of review panels which will periodically make recommendations to the ICANN Board in four areas: ensuring accountability, transparency, and the interests of global Internet users (panel includes the Administrator of NTIA); preserving security, stability, and resiliency; impact of new generic top level domains (gTLDs); and WHOIS policy.

On December 31, 2010, the Accountability and Transparency Review Team (ATRT) released its recommendations to the Board for improving ICANN’s transparency and accountability with respect to Board governance and performance, the role and effectiveness of the GAC and its interaction with the Board, public input and policy development processes, and review mechanisms for Board decisions.7 At the June 2011 meeting in Singapore, the Board adopted all 27 ATRT recommendations. According to NTIA, “the focus turns to ICANN management and staff, who must take up the challenge of implementing these recommendations as rapidly as possible and in a manner that leads to meaningful and lasting reform.”

DOC Contract and Cooperative Agreement with ICANN and Verisign

A contract between DOC and ICANN—specifically referred to as the “IANA9 functions contract”—authorizes ICANN to manage the technical underpinnings of the DNS. Specifically, the contract allows ICANN to perform various critical technical functions such as allocating IP address blocks, editing the root zone file, and coordinating the assignment of unique protocol numbers. Additionally, and intertwined with the IANA functions, a cooperative agreement between DOC and VeriSign (the company that operates the .com and .net registries) authorizes VeriSign to manage and maintain the official root zone file that is contained in the Internet’s root servers that underlie the functioning of the DNS.10 By virtue of these legal agreements, the DOC approves changes or modifications made to the root zone file (changes, for example, such as adding a new top level domain).

On July 2, 2012, NTIA announced the award of the most recent (and current) IANA contract to ICANN through September 30, 2015 (with an option to extend the contract through September 2019). The IANA contract continues to specify that the contractor must be a wholly U.S. owned and operated firm or a U.S. university or college; that all primary operations and systems shall remain within the United States; and that the U.S. government reserves the right to inspect the premises, systems, and processes of all facilities and components used for the performance of the contract.

NTIA Intent to Transition Stewardship of the DNS

The IANA functions contract with ICANN and the cooperative agreement with Verisign give NTIA the authority to maintain a stewardship and oversight role with respect to ICANN and the domain name system. On March 14, 2014, NTIA announced its intention to transition its stewardship role and procedural authority over key domain name functions to the global Internet multistakeholder community. If a satisfactory transition can be achieved, NTIA will let its IANA functions contract with ICANN expire on September 30, 2015 [Although the contract expires on September 30, 2015, it contains two option periods that can extend it through September 30, 2019 ]

As a first step, NTIA is asking ICANN to convene interested global Internet stakeholders (both from the private sector and governments) to develop a proposal to achieve the transition. Specifically, NTIA expects ICANN to work collaboratively with parties directly affected by the IANA contract, including the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB), the Internet Society (ISOC), the Regional Internet Registries (RIRs), top level domain name operators, Verisign, and other interested global stakeholders. In October 2013, many of these groups—specifically, the Internet technical organizations responsible for coordination of the Internet infrastructure—had called for “accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.”

NTIA has stated that it will not accept any transition proposal that would replace the NTIA role with a government-led or an intergovernmental organization solution.

In addition, NTIA told ICANN that the transition proposal must have broad community support and address the following four principles:

Supporters of the transition argue that by transferring its remaining authority over ICANN and the DNS to the global Internet community, the U.S. government will bolster its continuing support for the multistakeholder model of Internet governance, and that this will enable the United States to more effectively argue and work against proposals for intergovernmental control over the Internet. Supporters also point out that the U.S. government and Internet stakeholders have, from the inception of ICANN, envisioned that U.S. authority over IANA functions would be temporary, and that the DNS would eventually be completely privatized.15 According to NTIA, this transition is now possible, given that “ICANN as an organization has matured and taken steps in recent years to improve its accountability and transparency and its technical competence.”

Those opposed, skeptical, or highly cautious about the transition point out that NTIA’s role has served as a necessary “backstop” which has given Internet stakeholders confidence that the integrity and stability of the DNS is being sufficiently overseen. Critics assert that in the wake of the Edward Snowden NSA revelations, foreign governments might gain more support internationally in their continuing attempts to exert intergovernmental control over the Internet, and that any added intergovernmental influence over the Internet and the DNS would be that much more detrimental to the interests of the United States if NTIA’s authority over ICANN and the DNS were to no longer exist. Another concern regards the development of the transition plan and a new international multistakeholder entity that would provide some level of stewardship over the domain name system. Critics are concerned about the risks of foreign governments— particularly those favoring censorship of the Internet—gaining influence over the DNS through the transition to a new Internet governance mechanism that no longer is subject to U.S. government oversight.

Derived From: Lennard Kruger, Internet Domain Names: Background and Policy Issues, Congressional Research Service p 3 (Oct. 28, 2009)

Buildup to the AoC

Various Internet stakeholders disagreed as to whether DOC should maintain control over ICANN after the impending JPA expiration on September 30, 2009. Many U.S. industry and public interest groups argued that ICANN was not yet sufficiently transparent and accountable, that U.S. government oversight and authority (e.g., DOC acting as a "steward" or "backstop" to ICANN) was necessary to prevent undue control of the DNS by international or foreign governmental bodies, and that continued DOC oversight was needed until full privatization is warranted. On the other hand, many international entities and groups from countries outside the United States argued that ICANN had sufficiently met conditions for privatization, and that continued U.S. government control over an international organization was not appropriate. In the 110th Congress, Senator Snowe introduced S.Res. 564 which stated the sense of the Senate that although ICANN had made progress in achieving the goals of accountability and transparency as directed by the JPA, more progress was needed.

On April 24, 2009, NTIA issued a Notice of Inquiry (NOI) seeking public comment on the upcoming expiration of the JPA between DOC and ICANN.10 According to NTIA, a mid-term review showed that while some progress had been made, there remained key areas where further work was required to increase institutional confidence in ICANN. These areas included long-term stability, accountability, responsiveness, continued private-sector leadership, stakeholder participation, increased contract compliance, and enhanced competition. NTIA asked for public comments regarding the progress of transition of the technical coordination and management of the DNS to the private sector, as well as the model of private-sector leadership and bottom-up policy development which ICANN represents. Specifically, the NOI asked whether sufficient progress had been achieved for the transition to take place by September 30, 2009, and if not, what should be done.

On June 4, 2009, the House Committee on Energy and Commerce, Subcommittee on Communications, Technology, and the Internet, held a hearing examining the expiration of the JPA and other issues. Most Members of the Committee expressed the view that the JPA (or a similar agreement between DOC and ICANN) should be extended. Subsequently, on August 4, 2009, Majority Leadership and Majority Members of the House Committee on Energy and Commerce sent a letter to the Secretary of Commerce urging that rather than replacing the JPA with additional JPAs, the DOC and ICANN should agree on a "permanent instrument" to "ensure that ICANN remains perpetually accountable to the public and to all of its global stakeholders." According to the committee letter, the instrument should: ensure the permanent continuance of the present DOC-ICANN relationship; provide for periodic reviews of ICANN performance; outline steps ICANN will take to maintain and improve its accountability; create a mechanism for implementation of the addition of new gTLDs and internationalized domain names; ensure that ICANN will adopt measures to maintain timely and public access to accurate and complete WHOIS information; and include commitments that ICANN will remain a not-for-profit corporation headquartered in the United States.

Critical Elements of the AoC

Under the AoC, ICANN commits to remain a not-for-profit corporation "headquartered in the United States of America with offices around the world to meet the needs of a global community." According to the AoC, "ICANN is a private organization and nothing in this Affirmation should be construed as control by any one entity."

Specifically, the AoC calls for the establishment of review panels which will periodically make recommendations to the ICANN Board in four areas:

NTIA's Joint Project Agreement with ICANN Comments Due Feb. 15, 2008 Information on Administrative Procedure

For Immediate Release : October 29, 2007: Commerce's National Telecommunications and Information Administration (NTIA) today announced that it will consult with interested stakeholders regarding the mid-term review of the Joint Project Agreement (JPA) between the Department and the Internet Corporation for Assigned Names and Numbers (ICANN). NTIA will soon release a Notice of Inquiry (NOI) requesting comments to be due February 15, 2008.

"It is important that all interested stakeholders have an opportunity to directly share their views on ICANN during the JPA mid-term review," said NTIA Administrator John M. R. Kneuer at ICANN's 30th meeting. "We feel strongly that our review must be informed by your experiences with ICANN and perspectives regarding its evolution."

Kneuer also congratulated outgoing ICANN Chairman Vint Cerf on his tenure. "Vint's technical expertise, business experience, and global stature have been exceptionally well suited to the unique enterprise that ICANN represents," said Kneuer. "Over the course of the past eight years, ICANN's model of full participation by all interested stakeholders in decisions and policy making has progressively evolved and strengthened."

NTIA and ICANN signed the JPA on September 29, 2006. The JPA has a three-year term and provides for the Department to conduct a mid-term review of the agreement. The Department will consult with interested stakeholders to assist in conducting this mid-term review of ICANN's progress in meeting the responsibilities outlined in the JPA and by ICANN's Board. When published, the full text of the NOI will be available online at .

NTIA is responsible for the development of domestic and international telecommunications policy for the Executive Branch.

Requests for Comments

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Govt Papers