De cromnibus non disputandum est: What happens now with the "IANA Transition" and the USG handoff?

|The Volokh Conspiracy |

Buried amidst the 1600+ pages of the Cromnibus bill is this small nugget:

SEC. 540. (a) 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.

So it looks like the so-called "IANA Transition"—the US government's relinquishing of its contractual control over ICANN and the management of the Internet's naming and numbering functions—may not happen, at least not before September 30 of next year.

It's a monkey wrench in the works, that's for sure. The Transition is—will be—an important moment in the ongoing history of the relationship between the Internet and the countries (and people) of the world. The status quo of continuing US government oversight over ICANN's activities is unsustainable. The Internet's naming and numbering system is truly a global resource, management of which affects all Internet users worldwide; what, aside from (shades of the Panama Canal debates from several decades ago) the notion that "we built it, it's ours, whether the rest of the world likes it or not," justifies a special US government role in its operation?

We can put our heads in the sand and pretend that, post-Snowden, the world is going to continue to allow us to occupy this special place in the Internet ecosystem. But that is unlikely to happen. That special role is incorporated in the current contractual arrangements between ICANN and the USG—but those are set to expire on September 30; if there's no transition plan in place, what happens then? As Milton Mueller put it on the Internet governance forum:

If indeed the NTIA is disabled, and this disabling includes an inability to renew ICANN's contract, then the contract will expire and the Internet community will have to take charge of the process itself. The U.S. Congress may have just taken a more radical approach to the end of U.S. control.

That is, if we literally put our heads in the sand and do nothing at all, we'll all wake up on October 1, 2015 and the entire system will be, in effect, free-floating—but without our having had any chance to mold and condition the handoff process. The Internet won't stop working—domain names will continue to resolve to IP addresses and messages will continue to be delivered appropriately—but we will have lost a very valuable opportunity to ensure, by means of conditions attached to the handoff of responsibility, that ICANN (or whoever is managing the system) acts in a responsible manner, accountable to the global community of Internet users and remaining within its proper, narrow technical zone of competence, going forward. We might—and those who are responsible for this provision in the Cromnibus might—rue that missed opportunity down the road. The naming and numbering system is, of course, a critical part of foundational Internet infrastructure, degradation or failure of which would have globally catastrophic consequences. If we're really concerned about it being captured for purposes that are inimical to the continued free and open flow of information on the Internet—and we damned well should be concerned about that—sticking our head in the sand may lead to a more radical shift in organization of the system than a more orderly handoff would accomplish. It might work—as Mueller suggests, the larger Internet community might come to some reasonable accommodation without any input from the US government. But it might not. I suspect that those responsible for insertion of this proviso into the legislation will be surprised when, notwithstanding their efforts to keep the Internet "ours," US influence over the process and the entire system wanes dramatically as a result of their actions.