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ICANN still under US laws, but checks in place to avoid hostile takeover

US government may no longer have unique oversight of the internet's naming system, but ICANN remains bound by Californian laws, says official, who adds that checks are in place to mitigate any risk "of a government or third-party capture".
Written by Eileen Yu, Senior Contributing Editor

Administrative functions of the world's web traffic have been officially transferred out of US jurisdiction last October, but the non-profit organisation overseeing its operations remains bound by Californian laws.

There also were no provisions to move the Internet Corporation for Assigned Names and Numbers (ICANN) under the purview of a global organisation such as the United Nations' International Telecommunication Union (ITU), said Theresa Swinehart, ICANN's senior vice president for multi-stakeholder strategy and strategic initiatives.

She stressed, however, that the necessary checks and balances were in place to mitigate the risks of "a government or third-party capture" of ICANN.

The US government last October finally ceded control and oversight of the internet's domain name system (DNS), ending a journey that took more than 16 years of discussions and was fraught with delays.

Swinehart, who led the stewardship transition, detailed the steps ICANN took to safeguard its "multi-stakeholder" sovereignty and why it was not possible for any one country to "control" the internet after the transfer, as the Trump administration and other critics of the stewardship transfer had proclaimed.

In an email interview with ZDNet, she also responded to questions about whether Trump could overturn the stewardship transfer after January 20 and if there were restrictions in place pertaining to the number of seats a country could hold on the ICANN board.

ZDNet: With the IANA transfer completed in October, does this mean all of ICANN and its operations are no longer under the purview of the US government? So, who now effectively has oversight of ICANN?

Theresa Swinehart: Yes, as of October 1, 2016, the US government no longer has a unique oversight role over ICANN's coordination of the internet's unique identifiers.

However, while the US government no longer has a direct role in these functions, ICANN will remain incorporated in the state of California and bound by California laws. The US government also will continue, in conjunction with other governments, to provide advice to ICANN's board via ICANN's Government Advisory Committee.

As a part of the transition, the volunteer-based multi-stakeholder community gained additional powers to hold ICANN's board of directors accountable to the internet community and ICANN's bylaws. The new accountability mechanisms include strengthening ICANN's reconsideration and independent review processes. The improvements also will empower the global internet community to have direct recourse if they disagree with decisions made by ICANN and its board.

In the performance of the IANA functions, customers of these functions have replaced the US government in performing direct oversight over ICANN's role.

How is the ICANN board elected? Are there restrictions in place pertaining to the number of seats a country can hold on the board?

The ICANN board of directors has 16 voting members and four non-voting liaisons. It is selected by the ICANN community, either through the supporting organisations, the "At-Large Community", or a community-comprised nominating committee (8 directors). Each community group has its own processes for the selection of board members. ICANN's CEO, who is appointed by its board, also serves on the board ex officio.

While the board has ultimate authority to approve or reject policy recommendations, supporting organisations are responsible for developing and making policy recommendations to the board. Advisory committees also advise the board and, in certain cases, can raise issues for policy development.

Various forms of diversity, including geographic, gender, experience, and so on, are taken into consideration during the ICANN board election process. With regards to geographic diversity, no more than five voting members can be from any one geographical region; and no two voting members from any supporting organisation may be from the same country or region.

The nominating committee must make its selections to ensure the board has at least one voting member from each geographical region.

The Trump administration believes relinquishing ICANN control means handing over control of the internet to the likes of China and Russia. I know ICANN has refuted this, but can you explain why and how it is not technically possible for any one country to "control" the internet as Trump, and so many other Americans, believe?

The internet is a network of largely privately-owned and operated networks. No single entity, be it ICANN, a government, or an industry player, can seize control of the internet.

The global internet operates entirely on voluntary trust. While it is true that within a country, a government may exert control over its portion of the internet, that control stops at the country's borders. Attempts to exert control beyond borders requires the cooperation of others that are to be controlled.

ICANN's role of defining policies--by which the top level of the internet's names, addresses, and other technical values are created and managed--does not, in any way, imply control of the internet itself. ICANN's community helps define the various rules by which those technical values are used, but the actual use of those values requires the voluntary cooperation of internet users. There is simply no way to force all online users to do something they choose not to do.

Furthermore, ICANN's multi-stakeholder model is designed to ensure no single entity can capture ICANN or exclude other parties from decision-making processes. The model was founded on open processes where anyone can participate, and decisions are made by consensus with established appeals mechanisms, as well as transparent and public meetings. These elements have all been reinforced and strengthened because of the transition.

The multi-stakeholder model limits the influence of governments and intergovernmental organisations to an advisory role in policy development. More than 160 governments actively participate as a single committee and must come to a consensus before policy advice can be issued.

Now, after the transition, there will be times where the ICANN board must give special consideration to the public policy advice of governments. However, this will only happen when there is no objection from any government in the committee. This is a stricter requirement than is currently in place for government advice.

Will the Trump administration, after January 20, have any jurisdiction or legal recourse to overturn ICANN's transfer out of US?

ICANN remains a Californian non-profit public benefit corporation, as it has been from its incorporation in 1998. ICANN's bylaws and articles of incorporation clearly state ICANN will remain within the US.

The US Department of Commerce's National Telecommunications & Information Administration (NTIA), along with other US government agencies and a panel of corporate governance experts, conducted a thorough review of the transition proposal. NTIA confirmed the proposal mitigated the risk of a government or third-party capture of ICANN after the transition.

Columbia University's John Coffee also concluded: "ICANN has been given so many checks and balances that it is difficult to imagine a hostile takeover."

Are there plans to eventually place ICANN under the purview of a global organisation like the UN-ITU?

The US government's conditioned approval of the transition was to not replace its role with that of a governmental or intergovernmental organisation. The proposed transitioned stewardship of the IANA functions was to the multi-stakeholder community and included measures to ensure no governmental or intergovernmental organisation can control ICANN or the performance of the IANA functions. Consistent with our bylaws, we have no intention or ability to transfer control away from the multi-stakeholder community.

What's next on the to-do list for ICANN now that the transfer is complete?

Now that the transition is completed, it is largely business as usual at ICANN. We are focused on performing our operations with excellence, including supporting the ICANN multi-stakeholder community in its future policy development discussions.

A number of non-critical issues raised during the transition, that is, issues that were not directly related to the transition of the oversight of the IANA functions, remain a topic of discussion within the ICANN community. We anticipate the community to continue to work on those issues over the next few years.

And what key goals is it targeting to achieve in the next one to three years?

ICANN will continue to work towards its five strategic goals for years 2016 through to 2020. These priorities are evolving and furthering ICANN's globalisation; supporting a healthy, stable, and resilient unique identifiers system; advancing its organisational, technical, and operational excellence; promoting ICANN's role and multi-stakeholder approach; and developing and implementing a global public interest framework bounded by ICANN's mission.

What roles can Asia-Pacific nations play in supporting the objectives of ICANN?

The Asia-Pacific community participated actively in the working groups and proposal development processes for the transition. ICANN hopes that nations in the region will continue to work with the ICANN APAC Hub, engaging with ICANN in fulfilment of its mission and strategic priorities, such as by participating in ICANN's policy development processes.

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