On March 14, the U.S. Department Commerce Department’s National Telecommunications and Information Administration (NTIA) announced that it intends to relinquish control over the Internet Assigned Numbers Authority (IANA) and the domain name system (DNS) to the Internet Corporation for Assigned Names and Numbers (ICANN) without any vote in Congress.
For almost 20 years, the Internet has provided free and open access to content under a U.S. government contract with ICANN, which binds it to follow the First Amendment and all of its protections of the freedom of speech.
Now with the Commerce Department announcement, President Barack Obama is putting at risk every user of the Internet’s freedoms. As a result, Americans for Limited Government (ALG) has been at the forefront of efforts to stop President Obama’s Internet giveaway to an unaccountable, unelected multinational body like ICANN.
In a Freedom of Information Act request to the Department of Commerce, ALG requested the legal basis for the administration to turn over federal government property to ICANN without a vote in Congress. Under the Article IV of the Constitution, only “Congress shall have power to dispose of … property belonging to the United States,” which the Commerce Department contract with ICANN enumerates: “All deliverables under this contract become the property of the U.S. Government.”
As recently as May 30 the House voted by a 229 to 178 margin denying funding to the Obama administration to perform the transition in an amendment offered by Rep. Sean Duffy (R-Wis.) to the Department of Commerce appropriations bill.
Which makes new legislation offered by Rep. Mike Kelly (R-Pa.) somewhat inexplicable, particularly since it gives Obama the very authority he needs to perform the Internet giveaway in return for very little.
Ostensibly called the “Defending Internet Freedom Act of 2014,” in Orwellian fashion the bill does the opposite. It purports to “prohibit the National Telecommunications and Information Administration from relinquishing responsibilities with respect to Internet domain name functions.”
That is, the preamble continues, “unless it certifies that it has received a proposal for such relinquishment that meets certain criteria.” Ergo, once the criteria are satisfied, NTIA is authorized to perform the Internet transition — and there will be no going back.
Furthermore, all the bill requires are a few token changes to ICANN’s bylaws, the establishment of a new IANA Consortium to administer the root zone, and an NTIA certification that ICANN will “appl[y] a standard that is at least as protective of such freedoms as is the First Amendment to the Constitution.”
But such a standard is impossible. For starters, there is no First Amendment cause of action that can be brought against a private institution like ICANN in federal court in the event of censorship. Meaning on its face it can’t possibly be “as protective” as what is currently in place, including the tremendous body of judicial precedent guarding against government censorship.
As Americans for Limited Government President Nathan Mehrens noted in a statement in opposition to the legislation, “there will be no requirement for ICANN to apply the highest level scrutiny for First Amendment claims against itself like a court would.”
Meaning, “turning the Internet names and numbers functions over to ICANN effectively makes them the prosecutor, judge, jury, and executioner over all speech on the information highway with no recourse,” Mehrens added.
Which, several years or decades from now, could lead to very negative outcomes, like the wholesale suppression of domain names of politically disfavored groups.
Don’t think it can happen? Fine, but the solution is not to roll the dice to find out. And certainly not for Congress to freely offer its imprimatur for the Internet transition in return for almost nothing, and for no good reason.
As ALG’s Mehrens noted, “We shouldn’t even be having this conversation, when nobody has even made the case for the necessity of the Internet transition. Why is creating a global, unaccountable monopoly for Internet governance so important? It is not up to Congress to make that case for the President. It is up to Congress to stop him, because once the Internet is gone, we won’t get it back.”
Robert Romano is the senior editor of Americans for Limited Government.
