On June 9, 2016, the US National Telecommunications and Information Administration ("NTIA") announced that the Internet Assigned Numbers Authority ("IANA") Stewardship Transition Plan (the "Plan") submitted to it by the multistakeholder community on March 10, 2016, satisfies the transition criteria that the NTIA outlined two years earlier. The IANA performs important technical functions, including management of the root zone, which is the authoritative record for all top-level domains ("TLDs"). The NTIA has historically served as a steward for IANA functions. However, in March 2014, the NTIA announced its intention to transition its limited technical and oversight role to the global multistakeholder Internet community. NTIA approval of the Plan represents a critical step in the transition of IANA functions.
The NTIA required that the Plan have broad community support and meet the following conditions:
- Support and enhance the multistakeholder model
- Maintain the security, stability and resiliency of the Internet DNS
- Meet the needs and expectations of the global customers and partners of IANA services
- Maintain the openness of the Internet
The NTIA also indicated it would not accept a plan that replaced the NTIA's role with a government-led or intergovernmental organization solution.
Confirmation of the Plan
The NTIA, working with other US government agencies, conducted a thorough review of the Internet community's Plan. The NTIA also evaluated the Plan against relevant internal control principles, as recommended by the US Government Accountability Office (GAO). Finally, an expert panel of corporate governance experts reviewed the Internet Corporation for Assigned Names and Numbers (ICANN) accountability enhancements, which were critical to the overall Plan. In finding that the Plan satisfies its criteria, the NTIA confirmed that:
- The Plan supports and enhances the multistakeholder model because it was developed by a multistakeholder process that engaged Internet stakeholders around the world. The Plan builds on existing multistakeholder arrangements, processes and concepts in defining post-transition oversight and accountability mechanisms. Further, the Plan balances community decision-making processes by better integrating various ICANN supporting organizations and advisory committees into a more egalitarian "Empowered Community" structure. The Plan also provides a variety of escalating mechanisms to hold the ICANN Board accountable for its decisions and creates constraints on the ICANN board's ability to blindly follow Governmental Advisory Committee (GAC) advice.
- The Plan maintains the security, stability and resiliency of the Internet DNS because it relies on ICANN's current well-functioning operational practices in performing IANA functions. The proposed accountability and oversight provisions bolster the ability of Internet stakeholders to ensure ongoing security, stability and resiliency.
- The Plan meets the needs and expectations of the global customers and partners of IANA services because it was created by those customers and partners, including registry operators and Regional Internet Registries (RIRs). In line with stakeholder expectations, the accountability mechanisms will ensure that ICANN will perform in accordance with the will of the multistakeholder community. Critically, the Plan includes retention of ICANN under US jurisdiction, clarification that ICANN has no authority to regulate online content, and confirmation that ICANN has clear authority to enter into and enforce contracts with registry operators and registrars.
- The Plan maintains the openness of the Internet because it requires that IANA functions, databases, operations and related policymaking remain fully open and accessible, as they are today. The accountability provisions help ensure that members of the global Internet community can work together to preserve the openness of the Internet in perpetuity.
- The Plan does not replace the NTIA's role with a government-led or intergovernmental organization solution. The Plan eliminates the NTIA's existing verification and authorization role for root zone changes, and performance oversight with respect to IANA functions is replaced with direct customer stewardship via contracts, service-level expectations, community-led reviews and increased transparency. The accountability provisions maintain the advisory role of governments within ICANN and, through bylaw changes, ensure that a government or group of governments cannot exercise undue influence over the DNS.
Although the NTIA's approval is a critical step toward successful completion of the IANA transition, its approval is not surprising given that the NTIA has been involved in developing the Plan and guiding the community from the start. Indeed, NTIA personnel, represented in the GAC, participated actively in discussions that shaped the Plan, and NTIA leaders provided comments throughout the process to ensure the Plan remained on track.
NTIA approval of the community-driven IANA Stewardship Transition Plan represents a historic landmark in the history of Internet governance. It represents the first instance of the multistakeholder community coming together and delivering a consensus proposal to the US government to transition governmental power to the community itself. While the US government has been an exemplary steward of IANA functions, transition to the multistakeholder community will enhance global, private-sector-led governance of key Internet infrastructure. In other words, the individuals, businesses and organizations that operate and rely on the Internet will directly oversee its management and hold ICANN, as the IANA functions operator, accountable for IANA functions decisions. In addition, the transition counters arguments that no one government should control Internet infrastructure and prevents indirect government takeover through a government-influenced organization.
Brand owners, particularly those operating new ".brand" generic top-level domains (gTLDs), will for the first time have a direct stake in IANA functions decision-making. Through a Customer Standing Committee and other oversight mechanisms being implemented as part of the post-transition IANA, registry operators and other stakeholders will be able to ensure that the IANA remains operationally stable and performs to stakeholder expectations. It will be vital for brand owners and registry operators, among other stakeholders, to participate in these new mechanisms to ensure that the IANA continues to perform at the high level it has historically maintained under US government oversight and to ensure that it cannot be unduly influenced by special interests.
While the NTIA's determination that the Plan meets the necessary criteria is an important milestone, there is still work to be done before the IANA functions stewardship transition can occur. The NTIA is engaging with stakeholders, including leaders in Congress, to ensure that they are well-informed regarding the Plan and the NTIA's assessment. Skepticism within Congress regarding the transition remains the most likely additional hurdle to completing the transition in 2016, and US election politics are also a source of uncertainty in the event that there is a delay in completing the transition prior to the presidential election in November 2016.
In addition to these considerations, ICANN and Verisign (as the current Root Zone Maintainer) must successfully complete the testing of the minimal operational changes that would occur with the eventual transition of the NTIA's stewardship role. Specifically, ICANN and Verisign are testing the ability to transmit root zone change requests directly from ICANN to Verisign in a manner that maintains the integrity of the root zone file. ICANN and Verisign also must complete and publish a Root Zone Maintainer Agreement (RZMA), a draft of which is underway, that details their relationship in root zone management post-NTIA.
Finally, ICANN must finalize the agreements that establish operational accountability and performance expectations for IANA functions, including the Regional Internet Registry Service Level Agreement with ICANN and the Supplemental Agreement between the Internet Engineering Task Force and ICANN. ICANN must also establish the requisite community structures, such as the Post-Transition IANA, the Customer Standing Committee and the Root Zone Enhancement Review Committee.
NTIA has set a deadline of August 12, 2016, for ICANN to provide it with an implementation planning status report to gauge whether the contractual drafting and technical testing work is likely to be completed prior to the September 30, 2016, expiration of the extendable IANA functions contract. Assuming interim milestones can be met and Congress does not ultimately impose political or legislative delays to the IANA transition, the IANA transition remains on track to proceed by the September 30, 2016, contractual deadline.
The NTIA's approval of the IANA Stewardship Transition Plan represents a critical step toward successful completion of the IANA transition. As the September 30, 2016, deadline approaches, the multistakeholder Internet governance and operational communities will be working to complete technical testing and to finalize the agreements necessary to effectuate the Plan.
The full IANA Stewardship Transition Plan is available at the NTIA website.
Originally published on June 24, 2016
Learn more about our Intellectual Property practice.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2016. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.