Heritage Action Supports Cruz-Duffy ICANN Legislation
This week, Sen. Ted Cruz (R-TX) 97% and Rep. Sean Duffy (R-WI) 71% will introduce The Protecting Internet Freedom Act. This legislation would prevent the transition of the control of the Internet from U.S. hands to an international body called the “Internet Corporation for Assigned Names and Number (ICANN) unless Congress affirmatively acts to do so. It also ensures that the United States Government would maintain ownership and control of .gov and .mil domains, to protect our national security interests.
Currently, the U.S. National Telecommunications and Information Administration (NTIA) provides oversight of the Internet, but over the past few years they have been in negotiations with ICANN over a potential transition. ICANN recently submitted the transition proposal to NTIA. The proposal was developed through discussions over the past two years involving many parts of the Internet community and would create a new entity, called the Empowered Community and comprised of five ICANN constituency groups, to replace the U.S.
The proposal includes a number of sound recommendations to improve accountability, but this does not mean that the proposal is fully vetted. Some concerns include:
- To incorporate the many substantive changes, ICANN’s bylaws have more than doubled in length. Considering the extent of these changes, there is near certainty that something has been overlooked which could cause problems down the line.
- While the transition development process considered a number of notional “stress tests” to assess how the new ICANN would deal with various problems, we will not really know how it will work under real-world pressures or whether the ICANN community can adequately muster the sustained will and cohesion to effectively utilize its new powers.
- Controversial issues such as human rights and legal jurisdiction will not be resolved prior to the transition.
After the transition the ability of the U.S. to provide support for the ICANN community’s future demands that the ICANN board adopt additional changes would be far less than if the U.S. contractual relationship remained in place. Ending the contract prematurely could remove the main incentive for the Board to compromise with the ICANN community at a critical juncture.
There is an additional concern that should not be overlooked. Indisputably, under the current proposal, governments would have more power and influence in ICANN than is the case today. Currently, governments serve only in an advisory capacity with no power to remove Board members or approve bylaws. In the new ICANN, the threshold for the board to reject government advice has been raised and governments will, for the first time, have the power to vote as a decisional participant in the Empowered Community on bylaw changes, dismissal of the board, and ICANN’s budget. We do not know how the expanded power of governments will affect ICANN in the future.
Some have argued that the expanded power of governments in ICANN is the price we have to pay to stop governments desirous of more control over the Internet from going to the U.N. This is self-delusion. Regardless of whether the transition occurs or U.S. stewardship continues, China, Russia, and other like-minded governments will not cease their attempts to regulate and censor the Internet domestically and internationally through the U.N. or by asserting whatever leverage they can within and upon ICANN to achieve their goals. Because of these uncertainties, The Heritage Foundation has recommended a two-year extension of the current contract before completely handing over the keys to the system to ensure that the structure operates as it should.
Congress has not given its blessing for this transition, yet it will happen in the next few months unless Congress steps in to stop it. Brett Schaefer, who is the Jay Kingham Fellow in International Regulatory Affairs at The Heritage Foundation, recently testified on this issue to the U.S. Senate Committee on Commerce, Science, and Transportation. In his testimony Schaefer stated:
“Uncertainty with regard to how this new ICANN structure would operate should lead the U.S. to retain some oversight until there is confidence that it will work smoothly as envisioned. To that end, I recommend a “soft extension” of the existing contractual relationship—one that allows ICANN two years to demonstrate that the new procedures it is putting in place actually work to hold the corporation accountable. The transition to a multi-stakeholder global system is too important to get wrong and too important to rush.”
U.S. oversight has maintained an open and free internet and there is no reason to doubt that that would continue if the current contract is extended to ensure that the new, substantially different ICANN will work as envisioned. Cruz’s legislation would provide an important Congressional check on the system to ensure that any transition is in the best interest of the U.S. and Internet freedom more broadly.
***Heritage Action supports this legislation, encourages Senators to support it, and reserves the right to key vote in the future.***