No, it's not the money, although you'd be forgiven for finding that aspect
of the deal slightly odd. Each RIR pays [Correction: Not "Each RIR pays" - Rather "As a group the RIRs pay"] ICANN about half a million per
year. What do the RIRs get? As far as I can tell, for now they get left
alone, mostly. Money for old rope from ICANN's viewpoint. And of course
when there are new IP numbers to allocate, incumbent RIRs get them and a
there won't be any competitors. (Whether that really makes sense from a
competition law point of view if/when IPv6 comes on
stream we must leave for
another day.) But, if ICANN is to be run off the backs of internet users,
taxing IP numbers makes as much sense as taxing domain names. And on a
per- number basis, it's a pretty small tax.
No, the devil here is in a different detail: As drafted, this agreement
entrenches ICANN into the IP numbering system. For the first time, ICANN
proposes to strike a deal with a major set of players and not include a
clause making that agreement assignable to any successor to ICANN chosen
by the Dept. of Commerce. The US Dept. of Commerce are having their
hands tied here, and I'm worried they don't even know it. This ought to
be one of the first things Congress asks Commerce about when it holds
Here are the lawyer's details:
Start with section 6.3(f) of the draft RIR
agreement. There, ICANN
promises that it will "Not transfer any of its rights or authority
regarding Numbering Resources to any other organization except in
accordance with a Global Addressing Policy." Global Addressing Policies
are defined in section 4(b) of the the ASO MOU;
basically they are policies agreed by the ASO itself, in consultation with
the RIRs. Thus the ASO acquires a veto on what until now was the
Department of Commerce's (DoC) clear legal right to terminate ICANN and
transfer its functions to a successor of DoC's choice.
And, in section 11.2, entitled "Successors and Assigns" both ICANN and the
RIRs agree that
This Agreement may not be assigned by any
Party without the prior written consent of the others, and any attempted
unauthorized assignment will be void. Notwithstanding this prohibition, in
the event any Party changes its jurisdiction of incorporation or tax
status, this Agreement shall continue in full force and effect.
Contrast all this with the text and spirit of the ICANN-DoC
MoU. That agreement has a clause that protects the US Government in the
event that it decides to abandon ICANN and transfer recognition as `NewCo'
to another (more fit?) body. Originally this language read:
5. If DOC withdraws its recognition of ICANN or any successor
entity by terminating this Agreement, ICANN agrees that it will assign to
DOC any rights that ICANN has in all existing contracts with registries and registrars.
But DoC and ICANN
it to read:
5. If the DOC withdraws its recognition of ICANN
or any successor entity by terminating this MOU, ICANN agrees that it will
assign to the DOC any rights that ICANN has in all existing contracts with
the registries and registrars, including any data escrow agreement(s)
between VeriSign and ICANN with respect to the .com, .net, and .org
You might argue that the draft RIR
agreement directly contravenes the above. Regional Internet
Registries are, after all, registries. True, they register IP
numbers, not domain names, but they are registries nonetheless. RIPE, for
example, describes itself
as follows: "The RIPE Network Coordination Centre (RIPE NCC) is one of 3
Regional Internet Registries (RIR) which exist in the world today,
providing allocation and registration services which support the operation
of the Internet globally."
Or, you could argue, as ICANN surely will, that the context of the
language quoted from the ICANN-DoC MoU suggests that the language was meant
to apply only to domain name registries, and not to the RIRs.
Suppose for the sake of the argument this somewhat dubious claim is
correct. Doesn't it violate the spirit of the MoU with the DoC? And
doesn't it come at a somewhat suspicious moment: at the very time when
ICANN's very fitness is most universally suspect, will the US stand by and
watch ICANN remove a good chunk of the US government's leverage over it?
This agreement has a four year term, renewable, and no provision for
passing on the relationship if DoC de-recognizes ICANN. I'm
certain that the way in which the RIR contract amounts to a unilateral
declaration of independence from the US was not lost on ICANN -- that's
why it's willing to give the RIR's so much more autonomy than ICANN
offered, say, the ccTLDs. (Indeed, the decentralization aspect of this agreement has much to recommend it; might make a model for other parts of ICANN if the delegations were to bodies less captured and enmeshed in self-dealing than the DNSO.) I'd love to know if the RIR's understood what
they were doing -- is this a conscious ploy to start cutting the US out of
the roots of the Internet, to shore up ICANN at a time when it actually
looks as if there is a small chance the US might pull the plug? Or did
the RIRs not know?
And of course the biggest question is whether the
U.S. government will make public or private comments -- or maybe if it
can't get the clause changed, consider carefully whether it is wise to renew the MoU, or time to assign it before it's too late.
P.S. Watch out for ICANN arguing that if DoC fails to assign the rights under the MoU to another body, but merely lets the MoU lapse (or perhaps ICANN fails to agree to a renewal), then all the rights to assign terminate and ICANN ends up holding all the marbles.