US government overhauls main Internet contract

The US government has foreshadowed a major overhaul of how the top-level of the Internet is run in a “further notice of inquiry” to be formally published next week.

The overhaul will be put out to public comment for 45 days and concerns the ‘IANA contract’ which is currently run by ICANN and is due to expire in September 2011.

The overhaul will see a number of big changes, including:

  • Specifically separating the (technical) IANA contract from policy creation
  • Automating changes to the ‘root zone file’ (the Internet’s main directory)
  • Requiring changes to be explained through reference to other Internet bodies’ policies
  • An appeal and complaints mechanism
  • A new Director of Security role responsible for maintaining secure communications
  • Separating out control of the dot-int top-level domain to a third party
  • Additional auditing and metrics

The FNOI is a much-needed update to the contract, which has gone largely unchanged since it was first awarded in 1999 to DNS oversight organization ICANN.

However the FNOI also represents a major setback and a slap in the face to ICANN, despite an expectation that the organization will retain the contract later this year.

ICANN had formally requested that the IANA contract be transitioned and handed to it under a reformed “cooperative agreement”. The NTIA has crushed that expectation by noting that it does not have the legal authority to enter into a cooperative agreement with any organization, including ICANN, and specifically noting that it is “not in discussions with ICANN to transition the IANA functions nor does the agency intend to undertake such discussions”.

But more than that, many of the changes that the FNOI outlines in its “Statement of Work” reflect flaws with the way ICANN itself functions – perhaps unsurprisingly since ICANN has exclusively run the contract for the past decade and the US government asked for public comment on how to improve the contract’s functioning.

Nevertheless, for those familiar with ICANN, the FNOI reads like a litany of the organization’s failures – something that fits with public criticism of ICANN by Assistant Commerce Secretary Larry Strickling, who oversees the IANA contract.

Strickling has consistently and publicly identified problems with ICANN’s transparency and accountability over the past year and indicated that he is prepared to use the IANA contract to force ICANN to make improvements. Without the IANA contract, ICANN would not be able to effect direct changes on the Internet and so lose a crucial element of its power.

The .xxx clause

Notable in the FNOI is a clause (C.2.2.1.3.2) that requires whoever runs the IANA contract to explain how any new Internet extensions “has received consensus support from relevant stakeholders and is supported by the global public interest”.

This seemingly innocuous wording is a response to the controversial addition of the dot-xxx top-level domain earlier this year by ICANN, despite strong objections by governments, including the US government.

The NTIA was specifically asked by the EU to not allow the addition of dot-xxx until further discussions had taken place. It responded that it didn’t feel it was able to do so. With the addition of the new clause, however, whoever runs the IANA contract would have to pass a last hurdle before a new extension is added to the Internet.

In the light of the expected approval of the new gTLD program later this month that will result in the addition of hundreds of new top-level domains, this is a stark use of the US government’s power over the IANA contract and one that would not have been internationally acceptable prior to the dot-xxx situation.

Policy separation

A very clear requirement to separate the award of the IANA contract to any policy-making functions – something that is repeated at several stages in the FNOI – is a clear signal to ICANN that it cannot expect to subsume IANA into its own structure. (ICANN main function is to act as a policymaker for the domain name system.)

It is, simply put, the end of any dream ICANN may have had that it would simply make the IANA contract part of its make-up. It will also make it much easier for the IANA contract to be moved to a different organization at some future date.

Delegation and redelegation

The FNOI references a recent report carried out by country-code operators into how ICANN has managed changes to different countries’ top-level domains (delegations and redelegations). The report was very measured but unmistakably identified ICANN as having been inconsistent and at times arbitrary in decisions it had made through the IANA contract.

The FNOI specifically notes that future IANA contractors will have to explain their decisions through references to other Internet organizations’ policies – something that ICANN has been criticized for not doing.

Automation

Within six months of being awarded the IANA contract (i.e. by March 2012), the contractor will be expected to have automated many of its functions.

This again is a long-standing complaint against ICANN’s management of the IANA contract. Back in 2005 at its meeting in Luxembourg, ICANN was challenged by a third-party with an ‘e-IANA’ service that allowed specific individuals in charge of top-level domains to make changes without having to gain personal approval from ICANN staff.

That showdown led to significant improvements in the running of the IANA contract but ICANN has never introduced full automation, despite frequent requests over the past six years for it to do so.

Appeals and complaints

The FNOI identifies the need to introduce an appeals and complaints procedure in decisions made through the IANA contract.

ICANN has been criticized for failing to allow or respond to complaints over how it performs the IANA contract. Most recently, it was publicly excoriated for refusing to even acknowledge that it had received a request to change ownership of Ireland’s dot-ie Internet extension. The company asking was Ireland’s largest registrar.

Metrics and finances

There is a new requirement for metrics that cover the various IANA functions. Despite a significant effort on the part of ICANN to provide more information on how it ran IANA in 2006-2008, there has been little or no progress in recent years, and this was reflected in comments made to the NTIA by the Internet community, subsequently reflected in the FNOI.

Similar complaints were leveled at the opaque finances of IANA, although the NTIA was careful to note that it is not in the position as the provider of a contract to force the provision of financial information but did have audit authority over running of that contract.

Running of dot-int

The NTIA has concluded that the bundle of different functions that the IANA contract comprises should be retained, rather than separated out, although it makes it clear that it can foresee a time when that isn’t the case.

It does however specifically identify management of the dot-int top-level domain as something that can be pulled out of the IANA contract and awarded to another party.

Dot-int addresses are strictly limited to organizations, offices, and programs that are endorsed by a treaty between two or more nations. By noting that management of dot-int could move beyond the IANA contract, and so away from ICANN, is another sign that ICANN does not enjoy full patronage of the US government.

Conclusion and analysis

The ‘Further Notice of Inquiry’ is a welcome and positive update to a contract that is out of step with the Internet of 2011.

However, it also represents a significant lost opportunity in what was a drive to make the Internet more international and move control of crucial parts of the network outside the jurisdiction of a single government.

ICANN is, unfortunately, to blame for that loss. It was released from the Joint Project Agreement (JPA) that it shared with the US government in September 2009 and became accountable to the global Internet community.

However the cornerstone of the replacement agreement to the JPA – an independent review of the organization’s accountability and transparency – was very poorly handled by ICANN, including its staff, CEO and current chairman. Sat on that independent review team was none less than Larry Strickling, the US Assistant Commerce Secretary and person in charge of the IANA contract.

That ICANN remained unable to accept open review and constructive criticism of its own processes, despite the presence of the very man who was in a position to withdraw much of its power with the stroke of a pen, is a damning indictment of the organization’s culture. And it is that same culture that has failed to introduce requested improvements to the IANA contract over the past three years.

ICANN can expect to retain the IANA contract for the next five years. But the fact that improvements will have to be contractual imposed by the US government, not to mention the addition of a new clause that will require an additional step before new extensions can be added to the Internet, is a black mark on ICANN’s record.

The good news however is that the technical functioning of the Internet will be better off.


The further notice of inquiry (FNOI) will be published early next week in the US government’s Federal Register, but has been posted early on the National Telecommunications and Information Administration (NTIA) website. It will be accompanied by a 45-day public comment period.

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Further Notice of Inquiry for IANA contract673.16 KB

Comments

C.2.2.1.3.2 Responsibility and Respect for Stakeholders

"For delegation requests for new
generic TLDS (gTLDs), the Contractor shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest."

Okay, now who is to say exactly to what extent such "documentation" must demonstrate consensus support? Who is to say who the relevant stakeholders are (for .CANNON will a letter from their CEO suffice?)? Is the NTIA now planning to designate itself as the determinant as to what is the "global public interest"? Or are they going to set up their own multi-stakeholder body to sort out these questions?

As threatening as it appears to be to new gTLD program, should this last sentence from C.2.2.1.3.2, be taken seriously? Because if it is,the implications go way beyond new gTLDs.