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.

Note that Strickland is the most widely quoted supporter of this transition, but back in 2014 neithre Thune nor Rubio thought much of his opinions.

Thune, Rubio Demand Answers from Administration on Internet Transition [April 2, 2014]
http://www.thune.senate.gov/public/index.cfm/2014/4/thune-rubio-demand-answers-from-administration-on-internet-transition

Washington, D.C. —
U.S. Senators John Thune (R-S.D.) and Marco Rubio (R-Fla.) and 33 of their Senate Republican colleagues today sent a letter to Assistant Secretary of Commerce Larry Strickling, head of the National Telecommunications and Information Administration (NTIA), seeking clarification regarding the recent announcement that NTIA intends to relinquish responsibility of the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community.

The letter expresses strong support for “the existing bottom-up, multistakeholder approach to the Internet governance,” and cautions: “We must not allow the IANA functions to fall under the control of repressive governments, America’s enemies, or unaccountable bureaucrats.”

The letter goes on to say: “The global community of Internet stakeholders should act deliberately and transparently as it formulates a possible proposal to transition the IANA functions to a nongovernmental entity. The multistakeholder model of Internet governance and the IANA functions are far too important for this process to be rushed or to be done behind closed doors.”

Among other things, the letter asks the administration to “explain why it is in our national interest to transition the IANA functions,” and how NTIA will ensure “the IANA functions do not end up being controlled, directly or indirectly, by a government or inter-governmental entity.”

Thune and Rubio were joined by Senators Kelly Ayotte (R-N.H.), John Barrasso (R-Wyo.), Roy Blunt (R-Mo.), John Boozman (R-Ark.), Richard Burr (R-N.C.), Saxby Chambliss (R-Ga.), Dan Coats (R-Ind.), Tom Coburn (R-Okla.), Bob Corker (R-Tenn.), John Cornyn (R-Texas), Mike Crapo (R-Idaho), Ted Cruz (R-Texas), Mike Enzi (R-Wyo.), Deb Fischer (R-Neb.), Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), Dean Heller (R-Nev.), John Hoeven (R-N.D.), Jim Inhofe (R-Okla.), Mike Johanns (R-Neb.), Ron Johnson (R-Wis.), Mark Kirk (R-Ill.), Mike Lee (R-Utah), John McCain (R-Ariz.), Mitch McConnell (R-Ky.), Jerry Moran (R-Kan.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio), Jim Risch (R-Idaho), Pat Roberts (R-Kan.), Tim Scott (R-S.C.), David Vitter (R-La.), and Roger Wicker (R-Miss.).

Senator Thune is the Ranking Member of the Commerce, Science, and Transportation Committee which has jurisdiction over the NTIA and the Department of Commerce. In 2012, Congress unanimously passed a resolution sponsored by Senator Rubio expressing support for the bottom-up, multi-stakeholder model that currently governs the Internet and for an Internet free from government control.

The text of the members’ letter is below:

The Honorable Lawrence Strickling
Assistant Secretary for Communications and Information
National Telecommunications and Information Administration
U.S. Department of Commerce
1401 Constitution Avenue, N.W.
Washington, DC 20230

Dear Assistant Secretary Strickling:

We write concerning the recent announcement by the National Telecommunications and Information Administration (NTIA) that it intends to relinquish responsibility of the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community. In its announcement, NTIA also asked the Internet Corporation for Assigned Names and Numbers (ICANN) to convene stakeholders and develop a proposal to transition the role currently played by NTIA.

We strongly support the existing bottom-up, multistakeholder approach to Internet governance that has led to immense prosperity and empowerment for individuals around the world. The current approach has helped to define the open Internet, which has allowed the private sector to deliver technology and services that have changed our lives for the better. In 2012, many of us were leaders on S. Con. Res. 50, a resolution that reinforced the U.S. government’s opposition to ceding control of the Internet to the International Telecommunications Union (ITU), an arm of the United Nations, or to any other governmental body. As you know, S. Con. Res. 50 unanimously passed both the Senate and the House of Representatives, a rare instance of bipartisan agreement on such an important topic.

In announcing the intended transition, NTIA committed that it “will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.” We agree that any such proposal would be completely unacceptable. Replacing NTIA’s role with another governmental organization would be disastrous, and we would vigorously oppose such a plan. We must not allow the IANA functions to fall under the control of repressive governments, America’s enemies, or unaccountable bureaucrats.

The global community of Internet stakeholders should act deliberately and transparently as it formulates a possible proposal to transition the IANA functions to a nongovernmental entity. The multistakeholder model of Internet governance and the IANA functions are far too important for this process to be rushed or to be done behind closed doors.

Because this issue is so important to the future of the Internet and for the protection of American values and interests, we request expeditious responses to the following questions and requests for information about the proposed IANA transition.

A 2000 report by the U.S. General Accounting Office stated that “it is unclear if the Department [of Commerce] has the requisite authority” to transfer control of the IANA functions to a private entity. Please provide us with the Administration’s legal views and analysis on whether the United States Government can transition the IANA functions to another entity without an Act of Congress.
Please explain why it is in our national interest to transition the IANA functions to the “global multistakeholder community.”

You have stated that NTIA believes “the timing is right to start the transition process.” Why does the Administration believe now is the appropriate time to begin the transition, and what was the specific circumstance or development that led the Administration to decide to begin the transition now?

What steps will NTIA take to ensure the process to develop a transition plan for the IANA functions is open and transparent?

Will NTIA actively participate in the global multistakeholder process to develop a transition plan for the IANA functions, or will the Administration leave the process entirely in the hands of ICANN?

You have stated that NTIA “will not accept a proposal that replaces NTIA’s role with a government-led or an inter-governmental solution,” but NTIA has been silent on how it will ensure the IANA functions do not end up being controlled, directly or indirectly, by a government or inter-governmental entity. What specific options are available to NTIA to prevent this from happening?
How can the Administration guarantee the multistakeholder organization that succeeds NTIA will not subsequently transfer the IANA functions to a government or intergovernmental organization in the future, or that such successor organization will not eventually fall under the undue influence of other governments?

NTIA asked ICANN to lead the transition process. However, ICANN has a potential self-interest in increasing its own autonomy and reducing its accountability to other entities. Some stakeholders have expressed concerns that ICANN may seek to control the IANA functions on its own, without oversight from anyone else. How did NTIA determine that ICANN is the appropriate entity to lead the transition process, and how will NTIA ensure that ICANN does not inappropriately control or influence the process for its own self-interest?

Does NTIA believe ICANN currently is sufficiently transparent and accountable in its activities, or should ICANN adopt additional transparency and accountability requirements as part of the IANA transition?
Is it realistic to expect that an acceptable transition plan can be developed before the IANA functions contract expires on September 30, 2015? Is there another example of a similar global stakeholder transition plan being developed and approved in just 18 months?
How will NTIA ultimately decide whether a proposed transition plan for IANA, developed by global stakeholders, is acceptable? What factors will NTIA use to determine if such a proposal supports and enhances the multistakeholder model; maintains the security, stability, and resiliency of the Internet Domain Name System; meets the needs and expectation of the global customers and partners of the IANA services; and maintains the openness of the Internet?
Will NTIA also take into account American values and interests in evaluating a proposed transition plan? How?

As this process moves forward, we will conduct careful oversight on behalf of the American people to ensure that American values, American interests, and the open Internet are protected. Your detailed responses to our questions and requests for information will aid in that oversight, and we thank you in advance for your personal attention to this matter.

Sincerely ....

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