Harvard Professor Karl Deutsch, the late nestor of political science, described world history as the “history of side effects”. Political actions, according to his theory, always have side effects which go out of control and constitute new history.

The history of the Internet is full of side effects. But this time, we could have special unproductive side effects. A failure of the IANA transition could trigger a process towards a re-nationalization of the borderless cyberspace and Ted Cruz would go into the Internet history books as the “Father of the Internet Fragmentation”.

The IANA History

The battle around the IANA transition meanwhile has a history of its own going back more than 30 years. IANA emerged as a one-man-institution of Jon Postel in the 1980s. IANA was never the “controller” of the Internet. It was an “enabler”. The IANA database is just like a “phone book” which enables users to find addresses. Postel operated IANA with the help of one assistant under a contract of his Information Science Institute (ISI) at the University of Southern California (USC) with DARPA, the advanced research agency of the US Department of Defense. Under this contract the US government authorized the publication of zone files for top level domains in the Internet root server system. This contract expired in 1997 and was extended until 2000.

In the early 1990s, after the invention of the world wide web, it became clear that the six gTLDs (.com, .net, .org, .gov, .edu and .mil), which were established in the 1980s, would not be enough. In the middle of the 1990s Postel had its own ideas how to extend the gTLD namespace. He flirted with the ITU and WIPO, two intergovernmental organizations of the UN system, to launch additional seven new gTLDs via an Interim Ad Hoc Committee (IAHC).

The Clinton administration was not amused; saw the risk of a fragmentation of the Internet and proposed an alternative route. A private non-for profit corporation with an international board, incorporated under Californian law was seen as the better alternative. In this model the decision making power would remain in the hands of the non-governmental provider and users of Internet servicers from the private sector, the technical community and the civil society. Governments were put into a “Governmental Advisory Committee” (GAC). ICANN was established in 1998.

This model—today known as the multistakeholder model—was a political innovation. The plan to give the management of a critical global virtual resource in the hands of qualified non-governmental stakeholders, rocked the traditional mechanisms of international relations. But not everybody was excited. Skeptical voices raised issues of legitimacy and accountability for the new ICANN. And many governments were not happy with the “advisory role” in the GAC.

Indeed, when ICANN was established, it was unclear whether this innovation would work. To reduce the risk of a failure, the US government entered into a Memorandum of Understanding with the new ICANN which included the duty for ICANN to report on a regular basis to the National Telecommunication and Information Administration (NTIA) of the US Department of Commerce. Furthermore, the US government transferred the contract with the USC, into a contract with ICANN to continue its stewardship role with regard to the IANA service.

ICANN was still untested. The original plan was to give ICANN full independence after two years. But even in the high speed Internet world, this was an unrealistic plan. To establish a multistakeholder mechanism is an extreme complex challenge. ICANN made progress from its very first day. But it was progress based on trial and error. And it took much more time than expected. Bill Clinton did describe the whole process in a speech in San Francisco in 2010 as “stumbling forward”.

Insofar it was not a surprise that the contractual relationship between ICANN and the US government was extended with a view that this relationship can terminate as soon as ICANN is mature enough to produce the expected sustainable outcomes, to guarantee stability of the Internet and enhance competition in the domain name market without governmental oversight.

The WSIS Battle

But as mentioned above, a substantial number of governments would have preferred an intergovernmental oversight for ICANN. In January 1999, during the World Economic Forum (WEF) in Davos, ITU Secretary General Pekka Tarjane from Finland attacked Bill Clinton’s Internet Adviser Ira Magaziner by arguing that the US approach is insincere. While the US government rejects a role for governments, it keeps its own role via special contracts. Magaziner replied that the role of the US government is not really oversight, it is more stewardship. And he added that the mid-term plan is to terminate this role as soon as ICANN is a stable organization which can stand on its own feet.

However, in 2002, when the United Nations started its World Summit on the Information Society (WSIS), more and more governments were pushing for an intergovernmental Internet Council. The WSIS became the space where the pro and con of ICANN oversight and the IANA contract was discussed in bitter battles.

One group wanted to have intergovernmental oversight for ICANN issues, at least “on the level of principle”. They argued, based on the principle of sovereign equality of states, laid down in the UN Charter, that each government should have the same rights. If the US government has the right (from the IANA contract) to authorize the publication of zone files of TLDs in the root, then all governments should be equally involved.

The other group used Vint Cerf’s argument: “If it isn’t broken, don’t fix it”. They warned that if the management of technical resources becomes the subject of political battles, Internet development will lose its dynamism. The Internet development is based on open, transparent and bottom up processes and the principle of innovation without permission. Imagine what would happen if the re-delegation of a ccTLD zone file in the Internet root would need the consensus by a UN Internet Security Council.

However, WSIS saw three years of wrestling about a reasonable way forward. And the continuation of the IANA contract, which has little substance but is full of symbolism, played a crucial role.

The WSIS outcome (Tunis 2005) was what one could call a “dynamic compromise”. On a general level, the 193 UN member states agreed on the principle of equality. Paragraph 68 of the Tunis Agenda states: “We recognize that all governments should have an equal role and responsibility for international Internet governance and for ensuring the stability, security and continuity of the Internet”. Based on this, the Tunis Agenda accepted—for an interim period - the status quo but launched a process of an unspecified “enhanced cooperation,” where different parties had different expectation of what the end result of this process could and should be. One group expected that the process will lead to a “status quo minus” the termination of the IANA contract. The other group expected that enhanced cooperation will lead to a “status quo plus” the launch of an intergovernmental Internet council.

Status Quo Minus vs. Status Quo Plus

After 2005 the Internet continued to grow and ICANN matured. In 2009, the Obama Administration terminated ICANNs reporting duties and gave ICANN basic independence by entering into an “Affirmation of Commitment” (AoC). The AoC introduced an interesting and innovation oversight mechanism via a decentralized review process by multistakeholder groups which was a good step towards enhanced accountability. However, the IANA contract was renewed until 2015 with an option for extension until 2019.

For many governments, which welcomed the AoC, the continuation of the IANA contract remained a problem. They wanted to see progress in the implementation of paragraph 68 of the Tunis Agenda. In 2010, India proposed a “Council for Internet Related Policies” (CIRP) in the UN General Assembly. In 2012, Russia and China wanted to use the World Conference on International Telecommunication (WCIT) in Dubai, to extend the mandate of the International Telecommunication Regulations (ITR) to the management of Internet names and numbers. In 2013, UN member states pushed for the establishment of an UNCSTD Working Group on Enhanced Cooperation (WGEC) where Saud Arabia was calling for governmental control of ICANN.

All those efforts to move towards a status quo plus, did not succeed. One reason was that ICANN made tremendous progress and signaled that a status quo minus is possible. It introduced internationalized domain names (IDN), the security protocol DNSSEC and the new gTLD program. None of the results were perfect. But ICANN demonstrated that it can learn lessons. The ICANN policy development processes (PDP) with its bottom up, open and transparent procedures which included all stakeholders in their respective roles on equal footing, demonstrated that the multistakeholder mechanism works and produces sustainable result.

This was more and more recognized also in the higher political level. The world leaders of the G8 nations recognized at the meeting in 2011 in Deauville, that the multistakeholder model is the best approach to Internet Governance. At the eve of the WCIT in Dubai, both houses and both parties of the US Congress put their authority behind ICANN and the multistakeholder model which was echoed by many governments around the globe, including the European Commission.

When the US government announced in March 2014 to let the IANA contract expire, it was seen by the overwhelming majority of the Internet community as the long awaited last step on this long march towards the privatization and internationalization of the management of Internet core resources.

It was remarkable to see the side effects of this announcement. The “Dubai Desaster” in December 2012, where ITU member states wanted to extend governmental control over the Internet, was turned into the “Busan Peace” in November 2014 and the ITU recognized that ICANN is the better place for the management of names and numbers.

When the US government announced its intention for the IANA stewardship transition, it defined a number of conditions: security and stability, enhancement of the multistakeholder model, no intergovernmental oversight and stronger accountability mechanisms.

ICANN’s multistakeholder community accepted the challenge. It was not an easy one and it became also clear that a multi-stakeholder process is more complex than a one-stakeholder process. It took more time than expected. However, quality of the outcome was seen as more important than meeting datelines.

After an endless chain of emails, telcos, face to face meetings, public comment periods, consultations and hearings, the 55th ICANN meeting in March 2016 could agree on the whole package. The “Marrakesh Consensus” is a triumph of the multistakeholder model. The door for the anticipated status quo minus is now open. Paragraph 68 of the Tunis Commitment is implemented. Every government has the same equal rights and responsibilities as member of ICANN’s GAC. In the GAC, each government has a veto. But if governments can’t agree, this does not block the ICANN community and its board to move forward with the delegation and re-delegation of Top-Level Domains.

The NTIA confirmed in August 2016 that the package with the “Marrakesh Consensus” meets its criteria. The IANA contract expires in September 30, 2016. But it is not yet a done deal. Ted Cruz and his friends still want to stop the transition before the expiration of the contract.

What happen if the IANA transition fails?

When Jörg Schweiger, DENIC’s CEO, was asked during the Internet Governance Forum Germany (September 2016) what will happen if the IANA transition fails, he gave a short answer: Only little. DENIC manages the .de domain with more than 16 million registered domain names but, Schweiger added, he fears that a failure of the transition could trigger uncontrollable processes towards a fragmentation of the Internet.

As we know, the IANA contract has only little substance but a lot of symbolism. A failed IANA transition would become another symbol. The irony of life is that a failed IANA transition would exactly produce what Ted Cruz want to avoid: More governmental control over the Internet by authoritarian regimes. A failed IANA transition would be an invitation for governments to come back with calls for governmental oversight. The 2nd UNCSTD Working Group on Enhanced Cooperation starts its series of meetings on September 30, 2016 and has to report to the 72nd Session of the UN General Assembly (UNGA 72) in 2017. The ITU has its next Plenipotentiary Conference in Dubai in 2018.

It would not be a surprise if the old proposals for a status quo plus will reappear on the negotiation table in the UN and the ITU. And even if there will be only little chance in the years ahead to reach a global intergovernmental consensus for an intergovernmental Internet body, the damage for the multistakeholder model and the trust into the strength and ability of the community to manage the underlying technical resources to the benefit of all would be substantial. Göran Marby, ICANN’s new CEO, was right when he argued in the recent hearing in the US Senate that he fears more negative impacts on the voluntary collaboration upon which the whole Internet is based.

And one should not forget that in the 2005 Tunis Agenda, the US government under a republican president, accepted also paragraph 63, which says that “countries should not be involved in decisions regarding another country’s country-code Top-Level Domain (ccTLD)”. This paragraph makes very clear that governments can do with its own ccTLD whatever they want, with or without the transition of the IANA stewardship. However, while a successful IANA transition would strengthen the global approaches and the multistakeholder model, a failed IANA transition would strengthen national approaches and the concept of cyber-sovereignty.

In other words, the unintended side effects of a failed IANA transition, could be the emergence of new borders in the global cyberspace with national Internet segments, and alternative Internet roots. If the Senator from Texas succeeds, he has a good chance to go into the Internet history books as the “Father of the Internet Fragmentation”.