Affirmation of Commitments

Citation
Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for Assigned Names and Numbers (Sept. 30, 2009) (Affirmation_of_Commitments_2009.pdf full-text).

Overview
On September 30, 2009, the Department of Commerce (DOC) and ICANN announced agreement on an Affirmation of Commitments (AoC) to "institutionalize and memorialize" the technical coordination of the DNS globally and by a private-sector-led organization. The AoC succeeds the concluded Joint Project Agreement (which in turn succeeded the Memorandum of Understanding between DOC and ICANN). The AoC has no expiration date and would conclude only if one of the two parties decided to terminate the agreement.

Buildup to the AoC
Various Internet stakeholders disagreed as to whether DOC should maintain control over ICANN after the impending JPA expiration on September 30, 2009. Many U.S. industry and public interest groups argued that ICANN was not yet sufficiently transparent and accountable, that U.S. government oversight and authority (e.g., DOC acting as a “steward” or “backstop” to ICANN) was necessary to prevent undue control of the DNS by international or foreign governmental bodies, and that continued DOC oversight was needed until full privatization is warranted. On the other hand, many international entities and groups from countries outside the United States argued that ICANN had sufficiently met conditions for privatization, and that continued U.S. government control over an international organization was not appropriate. In the 110th Congress, Senator Snowe introduced S.Res. 564 which stated the sense of the Senate that although ICANN had made progress in achieving the goals of accountability and transparency as directed by the JPA, more progress was needed.9

On April 24, 2009, NTIA issued a Notice of Inquiry (NOI) seeking public comment on the upcoming expiration of the JPA between DOC and ICANN.10 According to NTIA, a mid-term review showed that while some progress had been made, there remained key areas where further work was required to increase institutional confidence in ICANN. These areas included long-term stability, accountability, responsiveness, continued private-sector leadership, stakeholder participation, increased contract compliance, and enhanced competition. NTIA asked for public comments regarding the progress of transition of the technical coordination and management of the DNS to the private sector, as well as the model of private-sector leadership and bottom-up policy development which ICANN represents. Specifically, the NOI asked whether sufficient progress had been achieved for the transition to take place by September 30, 2009, and if not, what should be done. On June 4, 2009, the House Committee on Energy and Commerce, Subcommittee on Communications, Technology, and the Internet, held a hearing examining the expiration of the JPA and other issues. Most members of the committee expressed the view that the JPA (or a similar agreement between DOC and ICANN) should be extended. Subsequently, on August 4, 2009, majority leadership and majority Members of the House Committee on Energy and Commerce sent a letter to the Secretary of Commerce urging that rather than replacing the JPA with additional JPAs, the DOC and ICANN should agree on a “permanent instrument” to “ensure that ICANN remains perpetually accountable to the public and to all of its global stakeholders.” According to the committee letter, the instrument should ensure the permanent continuance of the present DOC-ICANN relationship; provide for periodic reviews of ICANN performance; outline steps ICANN will take to maintain and improve its accountability; create a mechanism for implementation of the addition of new gTLDs and internationalized domain names; ensure that ICANN will adopt measures to maintain timely and public access to accurate and complete WHOIS information; and include commitments that ICANN will remain a not-for-profit corporation headquartered in the United States.

Critical Elements of the AoC
Under the AoC, ICANN commits to remain a not-for-profit corporation “headquartered in the United States of America with offices around the world to meet the needs of a global community.” According to the AoC, “ICANN is a private organization and nothing in this Affirmation should be construed as control by any one entity.” Specifically, the AoC calls for the establishment of review panels which will periodically make recommendations to the ICANN Board in four areas:


 * Ensuring accountability, transparency and the interests of global Internet users—the panel will evaluate ICANN governance and assess transparency, accountability, and responsiveness with respect to the public and the global Internet community. The panel will be composed of the Chair of ICANN’s Government Advisory Committee (GAC), the Chair of the Board of ICANN, the Assistant Secretary for Communications and Information of the Department of Commerce (i.e., the head of NTIA), representatives of the relevant ICANN Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the Chair of ICANN.
 * Preserving security, stability, and resiliency—the panel will review ICANN’s plan to enhance the operational stability, reliability, resiliency, security, and global interoperability of the DNS. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.
 * Impact of new gTLDs—starting one year after the introduction of new gTLDs, the panel will periodically examine the extent to which the introduction or expansion of gTLDs promotes competition, consumer trust, and consumer choice. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.
 * WHOIS policy—the panel will review existing WHOIS policy and assess the extent to which that policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, independent experts, representatives of the global law enforcement community, and global privacy experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.