Controlling Internet Infrastructure, Part II

The "IANA Transition" and ICANN Accountability, Part II

This paper is the second in a series on the IANA transition. The initial paper explains the nature of the challenges and the opportunities presented by the transition. This paper describes the substantive and procedural safeguards that need to be in place to ensure that the transition does not undermine the principles of free and open communication on the Internet. Subsequent papers will address in greater detail the substance of specific transition proposals now under development, and provide recommendations concerning the key components of a successful transition process.

In Part 1 of this series on Controlling Internet Infrastructure, we described the “IANA transition,” the U.S. government’s plan to relinquish its special oversight role in connection with the Internet Corporation for Assigned Names and Numbers (ICANN) by terminating the contract pursuant to which ICANN has been managing the Internet’s “domain name system” since 1999. The goal of the IANA transition is to eliminate the contractual lever through which the U.S. government has exercised regulation, oversight, and control over ICANN’s DNS management activities since ICANN was formed in 1998. No element of the transition plan is more important than the design of effective “accountability” mechanisms, and the U.S. government should not proceed with the transition unless and until it has satisfactory answers in hand.

In this paper, we employ the tools of constitutional analysis to come up with an effective accountability structure and discuss their application in practice. A constitutional solution for ICANN involves, at a minimum, the following four elements:

  1. A clear and precise delineation between the powers that the corporation may, and those that it may not, exercise.

  2. A division of the institution’s powers so that they are not concentrated in one set of hands.

  3. Internal, institutional mechanism(s) to enforce the constraints of (1) and (2).

  4. Transparency and simplicity.

We then apply these principles to ICANN’s current structure and proposed changes that will occur as a result of the IANA transition. The goal of this paper is to articulate a clear vision for the design of a new suite of checks and constraints, which we believe is a precondition to the IANA transition and the elimination of the U.S. government’s contractual oversight role in the domain name system.

Download the full paper (pdf).

ATTACHMENT:

Controlling Internet Infrastructure, Part II

Authors:

Danielle Kehl is a fellow at New America's Open Technology Institute, where she researches and writes about technology policy issues.

David G. Post was a Senior Fellow at the New America's Open Technology Institute. Until his retirement in Fall 2014, he was the I. Herman Stern Professor of Law at the Temple University Law School, where he taught intellectual property law, copyright, and the law of cyberspace.