On February 5th, while many (including the author) were on route to ICANN 52 in Singapore, the U.S. Senate passed S.Res. 71, a non-binding, “Sense of the Senate” Resolution declaring February 8^th–14^th as “Internet Governance Awareness Week”. Those dates overlap the now ongoing ICANN meeting in Singapore, and the congruence is intentional.

The text of the Resolution (below) is fairly innocuous, in large part repeating long-standing U.S. support for the multistakeholder model (MSM) of Internet Governance (IG) and largely reflecting the IANA functions transition approval conditions already articulated by the National Telecommunications and Information Administration (NTIA). Notably, the Resolution ends with the proviso that, “Nothing in this resolution shall be construed as congressional approval of any proposal by ICANN to transition the stewardship of the functions of the Internet Assigned Numbers Authority to the global multistakeholder community.” The Senate, in other words, wants the transition to meet certain benchmarks but is in no way pre-committed to approval of any transition and accountability package that the ICANN community ultimately produces, and reserves its rights as a co-equal branch of government to review and evaluate the plan designed by the ICANN community.

Of greater note is the fact that the Resolution has bipartisan co-sponsorship. Its passage cannot be regarded as a Republican Senate laying down a red line for a Democratic Administration. Rather, it evidences a broad bipartisan commitment to maintaining ICANN as a fully accountable multistakeholder organization designed to withstand any attempt at governmental takeover or conversion to a multilateral structure.

Meanwhile, in the midst of Sunday working sessions in Singapore, ICANN’s long-time law firm Jones Day submitted a memo to the CCWG-Accountability regarding the limitations imposed by California public benefits corporation law on potential accountability mechanisms now being considered. One particularly relevant provision declares that “applicable California law does not provide for a mechanism that would empower the community, irrespective of whether ICANN has members or not, to overturn the decisions of the Board.” Initial reaction from CCWG members included a broad consensus that this could not be accepted as the last word on the subject since Jones Day is obligated to act as an advocate for its client. CCWG members also wondered why ICANN has yet to respond to its request for resources to retain truly independent counsel. ICANN surely has the resources; indeed, during his meeting with the GNSO Council on Sunday CEO Fadi Chehade revealed that its staff ranks had tripled over the past thirty months, a rather astounding rate of growth.

But if the existing legal structure will not accommodate the type of accountability measures that the community is seeking to develop then perhaps it is the structure that must change. S. Res. 71’s operational provision concludes with language requiring that the final accountability measures must “ensure that, prior to the execution of the transition of the stewardship of the functions of the Internet Assigned Numbers Authority, each of the foregoing elements of such proposal is adopted and made effective by ICANN through incorporation in its articles of incorporation and by-laws, as needed, and subject to independent adjudication or arbitration for dispute resolution, as appropriate”. (Emphasis added)

Failure to meet that Congressional expectation could lead to a repeat of the December 2014 appropriations bill language that forbade NTIA from spending a single penny on the transition through the end of fiscal year 2015—except that next time the prohibition could be open-ended.

The Resolution should be regarded as setting a broad policy context for the upcoming Senate Commerce Committee hearing on the IANA transition, which is expected to be the first of many such inquiries. Both ICANN and the NTIA are expected to be called as witnesses, and it will provide the first opportunity for the Senate to make public inquiry on the transition rationale and process since it was first announced by NTIA last March. Stay tuned.

Here is the text of the Resolution —

* * *

114th CONGRESS?
1st Session
S. RES. 71

Designating the week of February 8 through February 14, 2015, as
“Internet Governance Awareness Week”.

?IN THE SENATE OF THE UNITED STATES
February 5, 2015

Mr. Hatch (for himself, Mr. Blunt, Mr. Warner, Mr. Coons, and Mr. Inhofe) submitted the following resolution; which was considered and agreed to

RESOLUTION

Designating the week of February 8 through February 14, 2015, as
“Internet Governance Awareness Week”.

Whereas the United States remains committed to the multistakeholder model of Internet governance, in which the private sector works in collaboration with civil society, governments, and technical experts in a consensus fashion;

Whereas the United States has, through its stewardship of key Internet domain name functions, maintained an important role in the protection of the Internet as presently constituted;

Whereas on March 14, 2014, the National Telecommunications and Information Administration (referred to in this preamble as the “NTIA”) announced its intent to transition these key Internet domain name functions to the global multistakeholder community;

Whereas the transition process demonstrates that the United States supports and is committed to the multistakeholder model of Internet governance;

Whereas the NTIA has asked the Internet Corporation for Assigned Names and Numbers (referred to in this preamble as “ICANN”) to convene global stakeholders to develop a proposal to transition the current role played by the NTIA in the coordination of the Internet’s domain name system (referred to in this preamble as the “DNS”);

Whereas the NTIA has stated that there is no deadline for the transition, and that the transition proposal must have broad community support and must —

(1) support and enhance the multistakeholder model;

(2) maintain the security, stability, and resiliency of the Internet DNS;

(3) meet the needs and expectations of the global customers and partners of the Internet Assigned Numbers Authority; and

(4) maintain the openness of the Internet;

Whereas the NTIA has also stated that it will not accept a proposal that replaces the NTIA with a government-led or an inter-governmental organization, a position that is consistent with S. Con. Res. 50 (112th Congress), a concurrent resolution that was unanimously passed by the Senate and the House of Representatives in 2012 and supported “the consistent and unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the successful multistakeholder model that governs the Internet today”;

Whereas ICANN will be holding its next global meeting, ICANN 52, in Singapore between February 8 and February 12, 2015; and
Whereas designating the week of February 8 through February 14, 2015, as “Internet Governance Awareness Week” will encourage the participants at ICANN 52 to focus on developing key ICANN accountability principles for the protection of the global Internet: Now, therefore, be it

Resolved,

SECTION 1. Designation.

The Senate designates the week of February 8 through February 14, 2015, as “Internet Governance Awareness Week” to —

(1) increase public awareness regarding the March 14, 2014 announcement by the National Telecommunications and Information Administration (referred to in this resolving clause as the “NTIA”) declaring the intention of the NTIA to transition the stewardship of the functions of the Internet Assigned Numbers Authority to the global multistakeholder community;

(2) encourage public education about the importance of this transition process; and

(3) call the attention of the participants at the next global meeting of the Internet Corporation for Assigned Names and Numbers (referred to in this resolving clause as “ICANN”) to the importance of designing accountability and governance reforms to best prepare ICANN for executing the responsibilities that it may receive under any transition of the stewardship of the functions of the Internet Assigned Numbers Authority, including reforms that would —

(A) insist that the domain name system continues to function as part of a secure, stable, resilient, single, decentralized, open, and interoperable Internet;

(B) ensure a form of stewardship and accountability that is based on the separation of the functions of policy-making, policy implementation, and, as needed, independent adjudication or arbitration for dispute resolution;

(C) limit and maintain ICANN authority to matters that pertain to the coordination of Internet unique identifiers, and limit each function to those rights, responsibilities, and authorities that have been explicitly assigned;

(D) protect ICANN from undue influence or capture by one or more governments or multilateral or intergovernmental organizations, or a single set of other commercial or noncommercial stakeholders;

(E) maintain the commitment of ICANN for final action regarding key policy decisions to demonstrate broad support by the community of ICANN stakeholders;

(F) reinforce and expand transparency and accountability measures to ensure community access to ICANN documents and records; and

(G) ensure that, prior to the execution of the transition of the stewardship of the functions of the Internet Assigned Numbers Authority, each of the foregoing elements of such proposal is adopted and made effective by ICANN through incorporation in its articles of incorporation and by-laws, as needed, and subject to independent adjudication or arbitration for dispute resolution, as appropriate.

SEC. 2. Rule of construction.

Nothing in this resolution shall be construed as congressional approval of any proposal by ICANN to transition the stewardship of the functions of the Internet Assigned Numbers Authority to the global multistakeholder community.