12.10.2014 1

How the House saved the Internet

internet_questionsBy Robert Romano

“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.”

That is section 540 of the now released more than $1 trillion omnibus spending bill for the remainder of Fiscal Year 2015, defunding the Department of Commerce’s National Telecommunications and Information Administration (NTIA) from transitioning Internet governance to the Internet Corporation for Assigned Names and Numbers (ICANN).

The provision mirrors a 229 to 178 House vote on May 30 that denied funding to the Obama administration to perform the transition. That amendment was offered by Rep. Sean Duffy (R-Wis.) to the Department of Commerce appropriations bill.

Now it is going to become law, which will undoubtedly mean that, once adopted by the House and Senate, NTIA will have to renew its current contract with ICANN for another two years.

It will be the first assertion of Congressional prerogative over Internet governance since 1998, when Congress defunded the National Science Foundation’s administration the system in a 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.”

Including the Duffy rider in the omnibus might be the only way to keep First Amendment protections on Internet governance. As a U.S. government contractor, ICANN cannot engage in censorship. Freed of the contract and government oversight, which expires on September 30, 2015, and it would have become a real possibility.

This is a huge deal. No less so than because 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 March, Commerce was saying it didn’t need Congress, as reported in the Wall Street Journal by 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.”

On March 27, Americans for Limited Government filed 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.”

In its initial response, no legal analysis was produced by NTIA.

Americans for Limited Government is still awaiting further documents from the agency. So far, the agency has not claimed any exemptions under FOIA, raising the question if any legal analysis was even done by the administration at all on whether it has the authority to perform the transfer of Internet governance to a private entity.

But with the reprieve now being granted by Congress, we’ll find out. This will also give that body the opportunity to fully examine the issue to determine why such a transition of Commerce’s Internet stewardship function is even necessary.

As Americans for Limited Government President Nathan Mehrens recently 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.”

Now, for once, Congress is stopping Obama.

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

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