Tight Deadlines Could Challenge CWG's Draft IANA Transition Proposal, Say ICANN Stakeholders

The problems with the Cross Community Working Group’s (CWG) Internet Assigned Numbers Authority transition draft proposal for ICANN may lie less in its recommendations and more in its clarity and time frame, said Internet governance experts in interviews Tuesday. The CWG released the draft proposal Monday, via an ICANN news release. The 118-page draft highlighted its suggestions on an Independent Review of Board Actions (IRBA) as especially ripe for community input, among other items.

“The CWG is to be commended for producing a remarkably detailed document in a very short time,” said Phil Corwin, founding principal of e-commerce and intellectual property law consultancy Virtualaw. “That said, there are many gaps in the plan’s details, and many unaddressed areas for which it is soliciting community input,” he emailed. “This process is on such a fast track that there will not even be a reply comment period as is the norm for much less consequential ICANN issues.” Comments are due Dec. 22.

The CWG needs to do a “very, very good job communicating what all this means in clear, simple language,” said Michele Neylon, managing director of Blacknight Solutions, an Ireland-based domain registrar. The proposal and the ICANN release are “complicated and quite confusing, and there’s a hell of a lot of acronyms,” he said. The proposal’s timeline is “very aggressive,” particularly the Jan. 19 deadline for a final proposal to the CWG’s chartering organizations, said Neylon. “That won’t be easy.” ICANN didn't comment.

“At first-look it’s encouraging to see accountability and oversight vested with customers and stakeholders, instead of with the ICANN corporation and board,” emailed NetChoice Executive Director Steve DelBianco.

The CWG said in the ICANN release that it didn't think there was a "reason to transition the IANA Naming Functions outside of ICANN concurrent with the IANA Stewardship Transition." The draft proposal recommended four structures to replace NTIA’s oversight of the IANA functions: a Contract Co.; a Multistakeholder Review Team (MRT); a Customer Standing Committee; and an Independent Appeals Panel (IAP). The Contract Co. would probably be a nonprofit entity that would be the “signatory to the contract with the IANA Functions Operator,” said the release. The Contract Co. should be “lightweight and have little or no staff,” it said.

“If they are so lightweight, does that jeopardize their legal existence?” asked John Laprise, an Internet governance consultant and scholar. “I’m not an authority on non-profit law but it seems like an exceedingly weak structure,” he emailed. The Contract Co. “makes sense,” said Neylon. “There’s no reason for it to be some great big complex entity.”

The CWG said it’s considering whether the IRBA should be “binding with regard to [board] delegation/redelegation decisions, and possibly with regard to other decisions directly affecting IANA or the IANA Functions,” said the ICANN release. That’s especially important given the coming absence of NTIA “oversight and accountability” of the IANA functions, said the draft proposal.

“The arbitration must be binding,” said Laprise. “ICANN must be accountable for its actions,” he said. “The NTIA effectively holds a sword over ICANN’s head,” Laprise said. “What would happen if ICANN became a bad actor?” Laprise said the IAP should be a “permanent standing body that can develop a corpus of precedent since it is effectively creating a kind of corporate law to address policy implementation.”

“The MRT would be a multi-stakeholder body with formally selected representatives from all of the relevant communities,” but who would serve on the MRT hasn’t been determined, said the ICANN release. Some of the MRT’s work would correspond with the Contract Co., it said.

That the CWG hasn’t determined MRT’s “makeup is highly troubling,” said Laprise. But the MRT has “no power over ICANN,” he said. The MRT reviews and “makes the rules, but what compels ICANN to follow” the MRT? he asked. Neylon cited similar concerns about the current lack of structure of the MRT, but said it’s a positive development that its members wouldn’t be paid. The IANA functions don’t need a “new bureaucracy,” said Neylon.

Corwin's “overall concern is that haste will make waste, and that adhering to an artificially accelerated timetable will prevent the community from fully considering and shaping this critically important proposal,” he said. “As the CWG itself notes, the IANA transition should not take place until the separate CCWG on ICANN Accountability completes its work and all pre-transition accountability mechanisms have been put in place.” The CCWG hasn’t “even commenced its work on its much more complex and politically charged task,” said Corwin.