[bc-gnso] FW: Today's ICANN Oversight Hearing

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

FYI, this report has just been prepared for posting at the ICA website, 
www.internetcommerce.org<http://www.internetcommerce.org>.

Congressional ICANN Oversight Hearing Has A Bipartisan Theme -
It's Too Soon To End U.S. Oversight


On Thursday, June 4th the House Subcommittee on Communications, Technology and 
the Internet held an oversight hearing on "Issues Concerning the Internet 
Corporation for Assigned Names and Numbers". The hearing was remarkable in a 
number of ways. First, given the technically arcane nature of its subject, the 
turnout was spectacular - more than half the Subcommittee's members on a 
morning when other hearings competed for their attention, and a SRO crowd in 
the very large hearing room of the full Energy and Commerce Committee. Second, 
there was remarkable bipartisan agreement expressed, with Member sentiments 
falling on a continuum between extreme concern and "over our dead bodies" as 
regards the prospect of termination of the Joint Project Agreement (JPA) 
between the U.S. and ICANN on September 30th.

The witnesses appearing before the Subcommittee were:

 *   Fiona Alexander, Associate Administrator, Office of International Affairs, 
National Telecommunications and Information Administration, U.S. Department of 
Commerce
 *   Paul Twomey, Ph.D., President and CEO, ICANN
 *   Kenneth J. Silva, Senior Vice President and Chief Technology Officer, 
VeriSign
 *   Christine N. Jones, General Counsel and Corporate Secretary, The Go Daddy 
Group, Inc.
 *   Sarah Deutsch, Vice President & Associate General Counsel, Verizon 
Communications
 *   Thomas M. Lenard, Ph.D., President and Senior Fellow, Technology Policy 
Institute
All witness statements as well as streaming video are available at 
http://energycommerce.house.gov/index.php?option=com_content&view=article&id=1642:energy-and-commerce-subcommittee-hearing-on-oversight-of-the-internet-corporation-for-assigned-names-and-numbers-icann&catid=134:subcommittee-on-communications-technology-and-the-internet&Itemid=74
 .

Subcommittee Chair Rick Boucher stated at the onset that the hearing would 
focus on whether ICANN had become sufficiently transparent and accountable to 
let the JPA terminate; and concerns regarding the proposed introduction of new 
gTLDs - including enhanced competition, brand protection, and stability and 
security. Other Subcommittee members used their opening statements to raise 
concerns about ICANN's burgeoning budget and staff; question ICANN's priorities 
and whether it really cared about average Internet users; express the view that 
full independence would threaten national and global cybersecurity; and note 
the possibility of potential capture by the ITU or other entities. While 
several Members noted that ICANN's performance has improved, the prevailing 
view was that JOA termination was premature and that at least short term 
extension, coupled with some modification of terms, was in order.

Fiona Alexander performed the thankless task of delivering the Department of 
Commerce's views while new Assistant Secretary for Communications and 
Information Lawrence Strickling awaits Senate confirmation. Not only was she a 
stand-in but she could not indicate the Obama Administration's position on JPA 
extension because that is not fully developed (and even if a decision has been 
made, it could hardly be announced in advance of the June 8th closing of the 
public comment period that is supposed to inform and influence the decision). 
We were concerned by language in her prepared statement noting that even if the 
US does not extend the  JPA it will still participate in ICANN's Governmental 
Advisory Committee (GAC) and will also be able to file comments in ICANN's 
public consultation processes - Mr. Strickling made a similar observation at 
his Senate confirmation hearing, but these are hardly reassuring words for 
those who are familiar with ICANN decision-making processes, and most certainly 
do not equate to a formal oversight role.

Paul Twomey, whose departure as CEO later this year is already public 
knowledge, made his usual case for JPA termination to a highly skeptical 
Congressional audience - adding the new twist that an extension of U.S. 
oversight would indicate a lack of confidence in its private sector model and 
therefore encourage the international community to propose alternatives. None 
of the Subcommittee members appeared swayed by it.

Most telling, perhaps, were the positions taken by ICANN's largest registry and 
registrar contract parties, VeriSign and GoDaddy. Ken Silva noted that "while 
ICANN has continued to make progress in certain areas...the basic circumstances 
giving rise to widespread community concerns over the expiration of the JPA 
remain largely unchanged and further progress is critical prior to an 
expiration of the agreement and end to all governmental oversight of ICANN." 
Christine Jones was even more blunt: "ICANN has not yet achieved competition, 
nor the private, bottom-up coordination and representation called for in the 
ICANN bylaws. The JPA between ICANN and the Department of Commerce should be 
extended or modified, or renewed and modified, to stress the need to correct 
these deficiencies and require a clear roadmap from ICANN as to how it will 
regain the confidence of the community on which its existence 
relies...Unfortunately, ICANN has yet to commit to or is unable to commit to 
openness, transparency and accountability." When your largest business partners 
take you to this type of task in front of Congress you really have major 
problems.

The temperature in the hearing room rose by several degrees once the prepared 
statements were completed and questioning began. Chairman Boucher found it 
particularly disturbing that ICANN had never taken action against an accredited 
registrar engaged in cybersquatting. Ranking Republican Cliff Stearns honed in 
on ICANN finances, questioning whether ICANN's fees, budget and staffing were 
consistent with its non-profit status, as well as what ICANN would do with the 
more than $90 million in application fees for new gTLDs it anticipated 
receiving. Former full Committee Chair John Dingell resurrected the issue of 
the .com contract, with Christine Jones weighing in that the manner in which it 
was reached was "not transparent". Multiple Members questioned whether new 
gTLDs would truly introduce new competition and if ICANN was adequately 
addressing the problems they might introduce.

The hearing ended with Chairman Boucher noting that the record would be kept 
open for thirty days and that ICANN could anticipate receiving additional 
written inquiries.

What does all this mean for the termination or extension of the JPA? Too much 
should not be read into this particular episode because many Congressional 
hearings involve dramatic  posturing and it is the Obama Administration, not 
Congress, which will make the ultimate call. But the strong bipartisan concern 
about the inconsistency of ICANN's rhetoric with the reality of its performance 
is hardly confined to this Subcommittee - on May 19th, Senators Olympia Snowe 
and Bill Nelson, both serving on the Senate Commerce Committee, sent a joint 
letter to Commerce Secretary Gary Locke expressing the view that "ICANN has 
considerable work ahead to reach the point where it can stand alone as a 
stable, accountable, transparent and, most importantly, secure global 
organization" and essentially endorsing the view that the JPA be at least 
temporarily extended "to allow time to design and deploy new accountability 
mechanisms for ICANN". Post-hearing press reports indicate that Chairman 
Boucher will be joining other Committee members in their own letter to the 
Commerce Department recommending a one-year extension.

In short, if the Administration permits the JPA to terminate in less than four 
months it is on clear notice that such actions will unleash a strong bipartisan 
backlash from the other end of Pennsylvania Avenue.



***************************************
In addition, this report appeared in this asfernoon's Congress Daily--

HILL BRIEFS: HOUSE PANEL SEEKS EXTENSION OF ICANN OVERSIGHT

Technology. House Energy and Commerce Communications Subcommittee members today 
called for an extension of the U.S. government's oversight agreement with the 
nonprofit that administers the Internet domain name system. The deal is 
currently slated to expire Sept. 30. The Internet Corporation for Assigned 
Names and Numbers is "far from a model of effective and sustainable 
self-governance," and it would be unwise to shrink the government's role, said 
Rep. John Dingell, D-Mich. House Energy and Commerce Communications ranking 
member Cliff Stearns, R-Fla., plus Reps.

Mike Doyle, D-Pa., John Shimkus, R-Ill., and Lee Terry, R-Neb., support 
prolonging the arrangement between ICANN and the National Telecommunications 
and Information Administration, citing transparency and accountability 
concerns. House Energy and Commerce Communications Subcommittee Chairman Rick 
Boucher, D-Va., is reportedly drafting a letter to NTIA with Stearns and Energy 
and Commerce ranking member Joe Barton that recommends a one-year extension. At 
the hearing, ICANN President Paul Twomey pointed out that a separate but 
related NTIA-ICANN contract will not sunset. He also warned that extending the 
joint project agreement would signal that the U.S. government does not have 
faith in ICANN's model.

http://www.nationaljournal.com/congressdaily/hbp_20090604_9808.php


Finally, an excellent series of blogs from the hearing appear at 
http://domainnamewire.com/category/policy-law/ under the heading "Congress 
Beats Up ICANN".


Philip S. Corwin
Partner
Butera & Andrews
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Suite 500
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"Luck is the residue of design." -- Branch Rickey