02.24.2015 1

NTIA: ‘We do not need congressional approval’ to give away the Internet

By Robert Romano

internet_questions“None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration [NTIA] 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 [IANA] functions.”

That was the clear language inserted into Section 540 of the 2015 omnibus spending bill, prohibiting the Obama Administration from transitioning Internet governance to the Internet Corporation for Assigned Names and Numbers (ICANN) this fiscal year.

At the time, it was thought that the language would mean that NTIA would have to renew its current contract with ICANN for at least another two years, since the agency cannot perform the transition prior to the contract’s expiration and the contract only provides for either a two- or four-year extension.

At a January 27 meeting of the State of the Net Conference that’s sponsored by the Congressional Internet Caucus, NTIA Administrator Lawrence Strickling told members in attendance of the defund that “The act does restrict NTIA from using appropriated dollars to relinquish our stewardship during fiscal year 2015 with respect to Internet domain name system functions. We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract’s current expiration date of September 30, 2015.”

But overseas, Strickling may be singing a different tune, for example at a recent global multistakeholders ICANN meeting on the Internet transition in Singapore.

At the February 8 meeting of the Government Advisory Committee, Strickling said, “if [the IANA functions] contract expires as long as the community wants ICANN to keep performing those functions things go on.”

For those who advocate the Congressional power of the purse, this is a shot across the bow. Barring a renewal, if the contract expires on September 30, the apparent view of the Obama Administration is that the Internet governance transition to ICANN will be complete. Congress be damned.

Strickling clarified this position on February 10 at a separate session in Singapore, when he said, “what’s clear from this act is that the transition won’t happen prior to September 30th, 2015. Beyond that, though, we don’t really see that this appropriations rider imposes any additional requirements or restrictions.”

But others in the multistakeholder community are raising questions about the Congressional prohibition and what it means for the timing of the transition. At the same February 10 session, Avri Doria, a long-time participant at ICANN, asked, “if you can’t make the decision until this contract would have ended, then is there a forced [renewal]? Has Congress actually forced on you the need to do an extension?”

Strickling dodged this very good question, saying, “I’m not going to speculate. Get me a proposal and then we’ll answer the question.”

Doria, undeterred, pressed Strickling on the matter, asking again, “if you cannot make a decision on a proposal … until after September, does it matter that you get [the proposal] before?”

Then, Strickling carefully answered, “Possibly, but … we’re dealing now with the community. I’m not sure the community is prepared to deliver a proposal to us by the end of September. If it is we’ll deal with that then.”

This could be NTIA’s weak spot. According to Strickling, if the multistakeholder community delivers its proposal prior to September, the timing could “possibly” force NTIA to renew the contract beyond its current term. Possibly?

Somebody on the Senate Commerce Committee needs to ask the question of Strickling on February 25 when he is called to testify on the transition. Does the Congressional defund of the Internet transition this year force NTIA to renew the contract? If so, the only two options for renewal under the contract itself are for two- and four-year increments.

Yet, Strickling sees more flexibility than that, saying at the February 8 session, “We can extend the contract for up to four years, and while I can’t imagine why this process should require that length of time, if a few more weeks or months are needed as we get to the end of this, we can accommodate that.”

UPDATE: Here, Strickling is likely referring to section I.58 of the contract that states, “The Government may require continued performance of any services within the limits and at the rates specified in the contract. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within 15 calendar days of expiration of the contract.”

But, because the agency would have to provide prior written notice of the short-term extension, and the purpose of said extension by Strickling’s own admission would be to facilitate the transition, the notice would have to come during the Fiscal Year 2015 prohibition. So, it couldn’t be issued.

At the separate February 10 session, Strickling thought a two-year renewal might hurt the transition, saying, “if the community comes back and says, we need the full two years, I think that’s an issue because then that gets into the question of casting some question about the credibility of the whole process that’s being used here.”

And yet, it’s not about credibility, it’s about the law. The Congressional prohibition functionally forces NTIA into a two-year renewal, whether the multistakeholder community likes it or not.

But the fact that Strickling is admitting openly that he is uncertain if the transition will be ready by the end of September provides one more reason why the existing contract should be renewed for another two years.

Such an extension will provide ample time for all of the underlying questions — such as the need for Congressional approval of any transition of government property like the IANA functions — to be examined by Congress.

Because on that count, on February 8 Strickling said, “We do not need congressional approval in order to allow the plan to go forward.”

Oh really? Given the clear prohibition Congress just passed to stop the transition this year, it is clear NTIA does need approval. And it is high time members make their voices heard — and let NTIA know who’s really in charge once and for all.

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

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