On May 30, in an amendment offered by Rep. Sean Duffy (R-Wis.) to the Department of Commerce appropriations bill, the House of Representatives by a 229 to 178 vote denied funding to the Obama administration to transition control over the Internet Assigned Numbers Authority (IANA) and the domain name system (DNS) to an as of yet unnamed international body.
That was the first assertion of Congressional prerogative over the transition of these Internet authorities since the U.S. Department Commerce Department’s March 14 announcement that it would be giving them away.
The legislation now sits at the Senate, and yet to date, no Senate Republican has stepped forward to champion the issue — despite the overwhelming House passage of the Duffy amendment.
If for no other reason, Senate Republicans should push this issue simply because Commerce believes it can somehow transition the authority without any vote in Congress — and so far has failed to explain why that is so.
As revealed in March by the Wall Street Journal’s L. Gordon Crovitz: “a spokesman for the Commerce Department’s National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis.”
The Crovitz report prompted Americans for Limited Government to file a Freedom of Information Act (FOIA) request with the Commerce Department’s National Telecommunications and Information Administration (NTIA) requesting the legal basis for its plans to transition control over the Internet.
The FOIA request includes “All records relating to legal and policy analysis developed by or provided to the National Telecommunications and Information Administration (NTIA) that support its decision to ‘transition key internet domain name functions,’ including any analysis showing whether the NTIA has the legal authority to perform the transition.”
“The American people have a right to know why and on what legal basis, if any, the Commerce Department believes it has the power to transition control over key Internet domain name functions to an international body or to anyone else without a vote in Congress,” Americans for Limited Government President Nathan Mehrens stated.
Yet, in the Department’s interim response to the FOIA request, again, the analysis was not produced. It may show up at a later date, but by then it may be too late for Congress to do anything about it.
As it is, Senate Majority Leader Harry Reid (D-Nev.) wants to move the Commerce appropriations bill for Fiscal Year 2015 as soon as possible.
The dilemma is that, once those appropriations become law, if they do not defund the Internet transition now — due to occur as soon as September 2015 when the current contract with the Internet Corporation for Assigned Names and Numbers (ICANN) expires — Congress will have lost its only opportunity to pull the transition back from the precipice.
Given the administration’s multiple failures to furnish their legal justification upon request, the presumption for Senate Republicans ought to be that there is no legal justification for the action.
But, where are the Senate Republicans? Do they think, at least, that the White House should have to furnish its legal rationale for transitioning these Internet authorities to the international community before the Senate votes to give the administration the money to do it?
The case for Obama even having the authority to complete the transition is very much in doubt.
To be certain, Article IV of the Constitution states, “The Congress shall have power to dispose of … property belonging to the United States.” Does that include the Internet functions that are contracted to ICANN right now?
Under the Commerce Department’s current contract with ICANN, which provides for the administration of the IANA on behalf of the U.S. Government, it states, “All deliverables under this contract become the property of the U.S. Government.”
Those deliverables include “technical requirements for each corresponding IANA function,” “performance standards in collaboration with all interested and affected parties … for each of the IANA functions,” and “a fully automated root zone management system … [that] must, at a minimum, include a secure (encrypted) system for customer communications; an automated provisioning protocol allowing customers to manage their interactions with the root zone management system; an online database of change requests and subsequent actions whereby each customer can see a record of their historic requests and maintain visibility into the progress of their current requests; and a test system, which customers can use to meet the technical requirements for a change request; an internal interface for secure communications between the IANA Functions Operator; the Administrator, and the Root Zone Maintainer,” among other items.
As for the IANA itself, that reverts to the Commerce Department upon termination of the contract: “the Government may terminate the contract for default.” The contract even provides for the possibility of IANA being performed by another entity: “In the event the Government selects a successor contractor, the Contractor shall have a plan in place for transitioning each of the IANA functions to ensure an orderly transition while maintaining continuity and security of operations.”
All this leads to the conclusion that the Commerce Department can contract out administration of the IANA functions, but it cannot just give them away. Not without a vote in Congress.
The only question remaining is whether Senate Republicans will champion this issue and save the Internet from international control and potential censorship beyond the protections currently afforded by the First Amendment — before it is too late.
Robert Romano is the senior editor of Americans for Limited Government.
