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12.15.2014 1

Congress defunds Internet giveaway, advocates urge executive action

ProtectTheInternetBy Robert Romano

No sooner had the omnibus bill’s language been dropped, including language defunding the Internet giveaway, than advocates were urging the National Information and Telecommunications Administration (NTIA) to simply ignore the clear prohibition, originally authored by Rep. Sean Duffy (R-Wisc.).

To the uninitiated, the omnibus bill states in section 540: “None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.”

Paul Rosenzweig, visiting fellow at the Heritage Foundation and supporter of the transition, thinks this means almost nothing. In Rosenzweig’s view, the way the Obama administration intends to proceed, writing on his Lawfare blog, is “to relinquish control … through a decision to simply not renew that contract when it expires in September 2015 (thereby leaving ICANN with the authority to manage the IANA function on its own).”

He advises NTIA that “the language prohibits the NTIA from spending funds to carry out the transition… [and] since the act of not signing a contract (which is what NTIA proposes to do) costs nothing, there can be no funding prohibition that effectively prevents NTIA from declining to renew the contract.”

Cute. The Obama administration, with Heritage’s Rosenzweig as a cheerleader, propose to simply not sign a new contract and let the old contractor, in this case the Internet Corporation for Assigned Names and Numbers (ICANN), walk away with the asset. It’s absurd. ICANN would be stealing.

Without authorization from Congress, this is international theft of the keys to the Internet.

Never mind that the language is quite similar to how Congress defunded the National Science Foundation, the previous government entity that administered the IANA functions and the domain name system, in a 1998 rider to the Foundation’s appropriations: “That none of the funds appropriated or otherwise made available to the National Science Foundation in this or any prior Act may be obligated or expended by the National Science Foundation to enter into or extend a grant, contract, or cooperative agreement for the support of administering the domain name and numbering system of the Internet after September 30, 1998.”

It was that act that preceded the Commerce Department stepping in and then requesting bids on a contract to administer the IANA functions that was eventually awarded to ICANN. Like the omnibus language, it defunded the Foundation from “enter[ing] into or extend[ing] a grant, contract, or cooperative agreement.”

And since relinquishing responsibility is in fact an action being taken by the agency — which announced March 14 its “intent to transition key Internet domain name functions to the global multistakeholder community” — and it must be performed by salaried personnel like Assistant Commerce Secretary Lawrence Strickling, it would cost government funds to perform it.

Therefore, Strickling is prohibited from agreeing to any transition, or using any agency resources including his salary, to perform it. It’s illegal now. Congress passed and Obama signed the bill into law.

Besides, Article IV of the Constitution states “Congress shall have power to dispose of … property belonging to the United States,” and the Commerce Department contract with ICANN says the IANA is government property: “All deliverables under this contract become the property of the U.S. Government.”

That means it would take an active vote in Congress to authorize the transition, an objection the administration has not yet answered.

Americans for Limited Government was so skeptical of the Commerce Department’s legal authority to engage in the transfer, we filed a Freedom of Information Act request for “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 agency’s interim response has not produced any legal analysis supporting the transition, nor have they claimed any privileged exemptions under FOIA, meaning such an analysis might not even exist.

In the meantime, Rosenzweig is concerned Congress and Obama might be sacrificing the “good will” of the world expecting the Internet governance transition to occur:

“[If] the NTIA reads this language as compelling renewal of the contract and preventing the transition altogether, then this will send the wrong message to the rest of the world, many of whom doubt the bona fides of American stewardship of the network.  The United States achieved a fairly successful result at NetMundial in Brazil — at least in part because the proposed IANA transition created good will.  This points in the opposite direction.”

Why should anyone should care if the rest of the world doubts the integrity of Commerce Department oversight of the Internet Assigned Numbers Authority (IANA) functions?

If that’s the direction NTIA goes, it would be another egregious executive action in defiance of clear congressional directive not to do the transfer, a law which Obama has now signed. The heart of Rosenzweig’s argument is that NTIA can just ignore the clear will of Congress, and the separation of powers. That the law need not be followed.

An extremely dangerous position — advocating and accepting executive action by the administration against Congressional will — for the well-respected Heritage Foundation to embrace.

Robert Romano is the senior editor of Americans for Limited Government.

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