Senator Grassley reg. Today's ICANN Hearing [internet giveaway]

Grassley Statement at a Judiciary Subcommittee Hearing on Protecting Internet Freedom

Prepared Statement by Senator Chuck Grassley of Iowa Chairman, Senate Judiciary Committee Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts Hearing on “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet” September 14, 2016

The openness, security and stability of the Internet are of principal importance to all who use the Internet around the world – yet it’s the United States’ historical stewardship role over key Internet management functions that has helped to ensure this openness, security and stability. Today the Obama Administration intends to end this role not for technical considerations but for political reasons.

In March 2014, the National Telecommunications and Information Administration (NTIA) – headed by Assistant Secretary Larry Strickling – indicated its intent to transfer key Internet domain name functions, known as the Internet Assigned Numbers Authority (IANA) functions, to a global multi-stakeholder community. This past August, we received word that the Obama Administration intends to allow the IANA functions contract to expire as of October 1, 2016, allowing this transition to go forward.

This is happening despite the fact that a number of significant questions related to the transition remain unanswered including whether the transition will yield an unconstitutional transfer of United States government property, how the transfer will affect human rights and free speech issues, if U.S.-controlled Top Level Domains such as .gov and .mil could be compromised or if the Internet Corporation for Assigned Names and Numbers (ICANN) will be subject to increased antitrust scrutiny.

Here at the Committee, we’ve continued to engage with the administration about this transition and to date the answers we’ve received have been inadequate. It’s clear that the administration hasn’t conducted a thorough legal analysis of the many issues outstanding.

The Administration argues that stopping this transition could embolden authoritarian regimes, but these countries already fail to respect freedom of expression and will continue to advocate for government-led management of the Internet no matter what happens. If this Internet giveaway goes forward, there’s no reason to believe that authoritarian states would stop trying to exert greater control and we don’t know how things with play out long term. Recognizing this harmful impact of potential capture by foreign governments, the Administration has stated its proposal wouldn’t replace the status quo with a governmental or inter-governmental model. Nonetheless, under the March 2014 proposal, the power of foreign governments would be significantly increased as the threshold for the ICANN board to reject government advice is made more difficult, with 60% of the board now needed to reject government demands.

In ICANN, we see an organization that was blasted as recently as this past July by an Independent Review Panel for its inability to carry out basic duties of self-governance. The Review Panel found that ICANN’s Board Governance Committee has “failed several transparency obligations,” engaged in the “cavalier treatment” of constituent requests, and failed to undertake an examination of whether ICANN staff or contractors complied with their obligations under the Articles and Bylaws of incorporation. These failures raise serious concerns about the ability of ICANN to exercise proper corporate oversight and call into question ICANN’s organizational maturity. All the more disheartening is the fact that the potential for similar abuse from the board will only increase when the U.S. contract ends. Under the proposed new bylaws, the Board Governance Committee will retain its role and continue to rely on ICANN staff to inform its deliberations and will retain its ultimate authority. These types of governance problems make ICANN susceptible to corruption and abuse.

Over the last two years ICANN has undertaken accountability and corporate governance changes because of United States influence. With additional issues in areas such as human rights, corporate jurisdiction, and intellectual property left unresolved, there’s little reason to believe that such reforms will be completed without the continuation of the contract and the United States’ continued oversight and involvement.

These concerns, especially when it comes to accountability and transparency, are reasons why I have always questioned if the transfer is in the best interest of the American people and global Internet users. Despite the administration’s intention to give up the IANA functions contract, these concerns persist, indicating that this course is misguided, and at best, premature. I appreciate Senator Cruz calling this hearing and look forward to the witness testimony.

[a report prior to the hearing for those who want more ‘in-depth]

Senators Examine Internet Naming Authority
https://cei.org/blog/senators-examine-internet-naming-authority

This morning, the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts will hold a hearing entitled “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet.” The hearing will examine the ongoing process to transfer control of the Internet’s domain name system from the Department of Commerce’s National Telecommunications and Information Administration (NTIA) to the Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization. ICANN has run the domain name system since 1998 pursuant to a contract with NTIA—but once the so-called “IANA transition” happens, ICANN will “assume sole responsibility for the development of policy over the naming and numbering function of the Internet,” as Paul Rosenzweig puts it.

Unsurprisingly, this transition has proven controversial. Although its backers include the Obama administration, many tech companies, and several civil liberties organizations, some prominent Republicans including Sen. Ted Cruz (R-TX) have harshly criticized the move as a giveaway to repressive nations like Russia and China. Within the free market community, views differ as to whether control of the Internet’s domain name system should be transferred to ICANN, with the Mercatus Center’s Eli Dourado supporting the move but former Attorney General Ed Meese opposing it. (For an in-depth discussion of who supports and opposes the transition, and why, check out this piece by Anne Hobson and Zach Graves.)

CEI’s work on the IANA transition has focused on the separation of powers concerns raised by the Obama administration’s ongoing efforts to move forward quickly with the transition. These efforts are problematic in two ways. First, Congress has explicitly denied NTIA the power to use its appropriations to “relinquish [its] responsibility … with respect to the Internet domain name system” in fiscal year 2016. If the NTIA proceeds nevertheless, it would almost certainly violate the Antideficiency Act, which forbids any government official from spending public funds without authorization from Congress—or accepting “voluntary services” to carry out government business. Second, the federal government’s control of the Internet’s domain name system arguably constitutes a form of government property, and as such, Congress—and only Congress—can authorize it to be transferred under the Constitution’s Property Clause.

For a more detailed discussion of these concerns, see this coalition letter that CEI joined last month along with TechFreedom and many other free market groups—in addition to several prominent individuals, such as Esther Dyson, ICANN’s first chairman. The letter urges congressional leadership to safeguard its constitutional prerogatives by suing the administration if it moves forward with the IANA transition without approval from Congress. Such a move would follow in the footsteps of the House of Representatives’ decision in July 2014 to vote to authorize the Speaker of the House to sue the Department of Health and Human Services for spending money on Obamacare cost-sharing subsidies in excess of Congressional appropriations. (The lawsuit is still pending in federal court.)

Whatever one thinks about the ultimate merits of the IANA transition, it’s crucial that the process comport with the Constitution—not only as a matter of upholding the rule of law, but also to ensure that the process is not thwarted by litigation. For now, therefore, the transition should not proceed until Congress is satisfied that the Internet will remain in good hands for years to come.

!!! Reuters confirms .... !!!

Blocking Internet oversight transition a ‘gift to Russia’: Obama administration
http://www.reuters.com/article/us-usa-cyber-congress-idUSKCN11K26F

[Strickland, someone who trusts Obama thinks this transition is simply wonderful and prevents Russian hackers or some such thing.]

[But here’s the quote that as I understand it, carries this over past September.]

Senator John Thune, a senior Republican from South Dakota, told reporters Tuesday he expected lawmakers would add language to delay the Internet transition to a bill to fund the government past the end of September.

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