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Remarks of Lawrence E. Strickling Assistant Secretary of Commerce for Communications and Information ICANN Meeting

Buenos Aires, Argentina
June 21, 2015

Remarks of Lawrence E. Strickling
Assistant Secretary of Commerce for Communications and Information
ICANN Meeting
Buenos Aires, Argentina
June 21, 2015

—As Prepared for Delivery—

Thank you for the opportunity to speak at today’s session on the IANA transition and the evolution of ICANN accountability. The multistakeholder process to complete the privatization of the domain name system has now been underway for more than a year.  At the onset of my remarks, I want to express my thanks and my esteem for all of you in the community who have been participating in the untold numbers of meetings, conference calls and hallway discussions as to how best to plan for the transition of the stewardship for the IANA functions.  Everyone should feel a tremendous amount of pride in the fact that this organization becomes stronger every day that these discussions and deliberations continue.  It is a marvelous demonstration of the power of the multistakeholder process. I hope all of you feel that, understand that, and know that you are doing something that probably has never been done anywhere else in the world to the extent that it is being done on such an intense and continuous basis here at ICANN.

I have been asked to present my views on the proposals developed to date. Unfortunately, those of you who came today to hear me provide a judgment on the substance of the plans will be disappointed. I do not feel it is my place to inject my views into what has been an open and participatory process—a process where all ideas are welcome and where participants are able to fully test transition options.

Today, as the ICG finalizes the IANA transition proposals and as the CCWG on accountability listens to feedback on its draft proposal, I do want to look ahead a bit and provide some thoughts on the process and the schedule we will use to evaluate and accept the proposals and on the importance of implementation planning to completing the transition in a timely manner.

Our primary task once we receive the transition plan is to evaluate it against our criteria that we announced in March 2014. So my first message to you today is: in completing and documenting your plan, focus on the NTIA criteria. This is not to say that you should stop working on every other issue. If you want to solve other problems in ICANN, go ahead.  But the homework assignment is to develop a plan that meets the criteria and our review begins and ends on whether the plan satisfies the conditions.

This point was brought home to me at Friday’s CCWG meeting where participants were working through a list of criteria by which to judge the various options under consideration – the pros, cons, complexity and such. One person who was advocating for a particular option went through the different factors – explaining how the plan satisfied criteria. When he reached the question of whether the option met the NTIA conditions, he stated that he “expressed no view on that.” And no one in the room raised an issue. I urge you – stay focused on the task. Shouldn’t the first question to ask of any option be whether it satisfies the conditions? The second message I want to leave you with is the importance of delivering a plan to us that has been fully validated – has the community built a record that supports the plan and provides the basis for our ultimate acceptance of it? By validation, I mean the following:

  • Has the community built a record that supports the plan and provides the basis for our ultimate acceptance of it?
  • This record needs to clearly and convincingly demonstrate that the plan satisfies the conditions.
  • This record should reflect that the community fully understands the implications of its proposal. Every change in the current structure or practices will have consequences, some of which will be unintended. We will be looking to see how the community identified and mitigated any such consequences in its planning.
  • The record should reflect that the community considered alternatives and document the judgments and evidence that support the option that is being put forward.
  • The record as much as possible needs to anticipate and answer any question anyone might have about the plan. The stress testing plays an important role in this regard. This is an issue that is not just limited to justifying the plan. It also is important that the community address and answer issues in the plan and not leave them for further discussion and decision. It will be hard for us to certify a plan that leaves too many issues open for further work.
  • If the plan is relying on improvements to existing mechanisms, the record should reflect that the community understands the shortcomings of the current processes and has proposed improvements to remedy those shortcomings. An example of this that I point out in my blog published last week is the independent review panel. Putting faith in three or five or whatever number  individuals to replace the judgments of an elected board potentially provides less accountability for the community and more opportunity for the community’s will to be thwarted. It also may provide an aggrieved individual the opportunity to overturn a multistakeholder consensus by pursuing his or her parochial interests. If the community seriously wants to rely on such a mechanism, it needs to answer the criticisms of the current process that exist today.

All of these factors should drive the community to conclude on a proposal that is as simple as possible but still meets our conditions and the community’s needs. If a plan is too complex, it increases the likelihood there will be issues that emerge later. Unnecessary complexity increases the possibility that the community will be unable to identify and mitigate all the consequences of the plan. And a complex plan almost certainly will take longer to implement.

This brings me to the issue of timing and the schedule for completing the transition. Everyone here likely knows that the current IANA contract between ICANN and NTIA expires on September 30. Everyone can likely surmise that this transition including implementation will not be done by that date. So we are faced with the issue of how long to extend the contract.

Today, we can exercise an option to extend the contract two years to September 2017. I am concerned that if we simply extend the contract two years, it will send a signal to the community that it does not have to work hard to finish the plan or worse, that it might be interpreted as a lessening of United States government support to complete the transition. So several weeks ago, I asked the community, through the leadership of the ICG and CCWG, to provide me with an update on the status of transition planning and its views as to how long it will take to finalize the plan and implement it once it is approved. We hope to get responses shortly after this week’s meetings are concluded. Assuming the community advises us that the work will take less than two years, we will sit down with ICANN to negotiate an extension in line with the community’s wishes.

One factor in the timing is how long we will take in the U.S. government to review and evaluate the plan. Our Congress is considering legislation that if enacted into law, would require NTIA, after we receive and review the plan, to certify to Congress that the plan satisfies NTIA’s conditions and that the Board has adopted all necessary bylaw changes.  Once we do that, Congress would then have 30 days to review our report and determine whether it wants to take any action.  U.S. government review is therefore likely to take roughly four to five months, depending on when we receive the proposal. The good news with the legislation is that the debate in Washington is shifting away from whether the transition should happen to making sure that it happens in a responsible manner.

The other critical path element that emerges from the legislative language is the need to work out the specific language of bylaw changes as quickly as possible. We want to avoid a lengthy delay after we get the plan while language is being written and reviewed by the community as that will delay when we can provide our certification to Congress. I was glad to hear this issue being discussed between the CCWG and the Board this afternoon and it sounds like the Board will be able to provide technical assistance to resolve.

The last set of issues I want to raise deal with identifying the accountability issues in ICANN at this time and developing the appropriate response. How confident are all of you that you are focusing on the issues that really matter?

As I listen to the discussions of membership models, separability, budget reviews and the like, I am struck by the fact that this community goes through cycle after cycle of putting its own people on the board and then stops trusting them to act in the interest of the multistakeholder model.

I am puzzled by the fact that the discussion to date has not asked why it is that community leaders go from prophet to pariah simply by joining the ICANN board.  And I am worried that until the community solves this issue, all the other accountability tools will fall short of delivering the outcomes the community wants.

This is likely a longer term issue.  I do not think the IANA transition necessarily requires a solution to this problem, but the community needs to analyze why the current system leads to the loss of trust in the Board.

Is it how the Board is selected?

Is it the standard for Board action? I also raised this question in my recent blog. If what the community wants is for the Board to adopt consensus community policies, then should the standard for Board action simply be to confirm that the community reached consensus in an open, transparent and inclusive manner? If the community does not want the Board substituting its own judgement for that of the community, why not develop a standard that better defines the scope of Board reviews?

A related question is to understand why the board makes policy judgements to which the community objects. Is it because the community’s policy process failed to address issues that then have to be decided by the Board because the community did not adequately do its job?

I hope you have found my comments helpful. I do not mind if you find them controversial, as long as they get people to think about the issues and focus on the ones that matter. In any event, I thank you for listening.