Why US Congress needs to oversight ICANN

Even though the Internet Corporation for Assigned Names and Numbers (ICANN) plays a very important role in the global Internet ecosystem, its activities are not frequently mentioned in the mainstream international media; that is, until ICANN’s name is mentioned alongside that of the US Congress in a US$1.1 trillion Omnibus spending bill. Since the bill was passed by the House of Representatives, the issue of ICANN has assumed a certain topicality and has attracted commentary from many pundits.

Advocacy on Internet Governance Matters

The organizations that I lead, DotConnectAfrica Trust and its registry technology services affiliate, are very active members of the Global Internet Governance community. Apart from applying for the .Africa new Internet Top-Level Domain name, we spend our spare time on spirited advocacy — writing letters urging the National Technology and Information Administration (NTIA) of the US Department of Commerce to support the new generic Top-Level Domain (new gTLD) program of ICANN; or writing to Senator John ‘Jay’ Rockefeller IV, Chairman of the US Senate Committee on Commerce, Science & Transportation, to express unequivocal support for the ICANN-led Global Multi-stakeholder model of Internet Governance and urging a Re-Affirmation of the status quo.

Therefore, when DCA started voicing certain issues concerning the .Africa new gTLD process, and feeling that no one was listening to its multi-faceted complaints, I was then compelled to write to Congressional leaders, and copied other leaders in the US Administration. A few months ago, I also wrote on behalf of DCA Trust to Senator John Thune and Senator Marco Rubio both of the Commerce, Science & Transportation Committee to express our thanks to them for intervening to enhance ICANN’s accountability.

My appeal to US Congress and clarifying Congress’s role to the public

Last year, when I took our complaints to Congress, some people scoffed. I only requested Congress to appoint a Congressional Ombudsman for the ICANN new gTLD Programme. I directly recommended that “the new gTLD Ombudsman will be authorized by Congress with the powers of an Independent Counsel to investigate and adjudicate on issues of illegality that have been reported regarding new gTLD matters.” I believed that such an Independent Counsel would assist in resolving most of the problems that would be brought by applicants based on issues that could not be handled within the guiding policy framework of the new gTLD program.

DCA Trust is now forced to engage in an Independent Review Process (IRP) Panel proceeding with ICANN regarding ICANN Board decisions over the .Africa new gTLD name string. The IRP is administrated by the International Center for Dispute Resolution (ICDR) of the American Arbitration Association (AAA). Similarly, many applicants who have disagreed with ICANN decisions have gone to seek accountability under the same IRP Process mechanism.

One Internet blog that covers the Internet Domain Name industry scoffed that Congress would not understand the import of my letter. In fact, I only wrote to specific leaders and as such, I did not expect most people to understand the deeper aspects of the complex articulations and the essential pivots on which I have based DCA’s case regarding the .Africa new gTLD name-string that we applied for. I recall engaging in an exchange of communications with the same Internet Blogger and used the opportunity to clarify and explain to a skeptical public how the US Congress has direct legislative and policy oversight over ICANN. I strenuously argued at the time that:

“… the same ICANN is under U.S. Federal Government Oversight by virtue of its mandate as a federal contractor handling the Internet Technical Management Functions (such as domain names and unique Internet address numbering and assignment) under the IANA Contract. It is therefore our contention that the United States Congress has complete jurisdiction over the entire new gTLD program of ICANN and this cannot be challenged (or scoffed at) by anybody without drawing the ire of Congress. DCA Trust has therefore acted correctly by recognizing the overarching authority of Congress over the entire ICANN new gTLD process and deciding on its own to undertake a necessary due process escalation of this matter to Congress. …”

As a result of my engagement with Congress, some within the ICANN global community thought that I drew the attention of Congress to ICANN by blowing the whistle of accountability on them. However, such thinking wrongly presumes that Congress has not been aware of Global Internet Governance and the leadership role it could play in this process; or the debates about who should be responsible for governing the Internet — a global communications platform that came out of advanced US research leadership capabilities and computer technology innovation.

Central to this history of innovation is the fact that the Internet is seen as an essential part of U.S. science and technology national public policy; which is also a tool for US international public diplomacy in this era of technology-driven globalization. When combined, these two elements make a very strong and unassailable case for the US to keep the Internet under its firm control. This therefore makes the complete devolution of Internet Governance functions a ‘No Go’ area for the United States Government.

The Omnibus Spending Bill, NTIA & ICANN

In the recent US$1.1 trillion Omnibus spending bill that was approved by both Houses of Congress, we find the following unambiguous stipulation:

“None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.”

This is very deliberate language that specifically mentions the IANA Transition by name and denies its funding. The implication is that if the NTIA and ICANN ignore this, and move ahead with the transition during Fiscal 2015, then this would be considered as a very serious violation of US Law. This explains why Congress is strong, because Congressional leaders would go to any lengths to ensure that there is wholesale conformance, compliance and accountability for any or all matters under its direct purview as an operative arm of the United States Federal Government.

Continued Misunderstanding of the Role of Congress and Some Flawed Arguments

Any action by Congress is thoroughly binding because of the concept of Parliamentary Sovereignty i.e. a constituted Parliament cannot be restricted in its powers to make any type of law. In addition to law making privileges, its powers of executive oversight enable it to hold hearings on matters within its interest; conduct investigations, subpoena witnesses to give testimony, appoint Special Independent Counsels, approve or withhold funds in the appropriations bill, screen Cabinet nominees appointed by POTUS, etc. Hence, wherever there is true constitutional rule, Congress (or a similar National Assembly within a federal democracy) is usually the highest over-sighting institution of the Federal Government.

I have observed some flawed arguments by some recent commentators who do not seem to understand what is happening in light of this recent development; and who have also failed to grasp the inimitable and rather broad powers of Congress. For some, Congress is interfering and think that the legislative body’s ‘unwarranted involvement’ could be bypassed by ‘crowd-funding’ the IANA Transition in defiance of the express wishes of Congress; while some others are advancing the supposition that Congress cannot oversight ICANN.

Next Steps for Congress

At this initial stage, Congress has simply withheld funding based on a very clear stipulation enshrined in the US$1.1 trillion Omnibus spending bill. After September 30, 2015, Congress could launch an investigation led by an Independent Counsel into the IANA Transition program, and also conduct public hearings on the issue. A US law could be enacted by Congress to permanently keep control of the Internet under a special agency of the US Government that would be formed; perhaps, the United States Internet Regulatory Authority (USIRA) — and such a new body would be required by law to make periodic reports to Congress regarding matters of Global Internet Governance and Internet Domain Name functions.

The force of law is typically used to give binding weight to administrative policy. Therefore, I wish to call for the establishment of such a new body that will work in cooperation with the NTIA to exercise supervisory responsibilities over ICANN.

The need for a more Accountable and Transparent ICANN

With focused Congressional searchlight on the NTIA and ICANN regarding Internet Domain Name functions and the implementation of the IANA Contract, one would now expect better accountability of ICANN’s decisions and processes — which everyone has always agreed upon: that ICANN’s accountability mechanism must be improved upon. Only Congress can deliver what the people have asked for. An institution that could report on the CIA’s enhanced interrogation techniques can equally dissect ICANN’s decision-making and processes with a view to making them more transparent and accountable. Congress always had the power to oversight ICANN. What is new is that Congress has now demonstrated the political will to do so; and you can take that to the bank.

(Sophia Bekele, Executive Director, DotConnectAfrica)

(This piece was first published in CircleID)