02.11.2015 0

Remind Obama of Congress’ power over Internet

protect the internetBy Robert Romano

The Senate has unanimously declared this week to be “Internet Governance Awareness Week,” which like it sounds, is intended to bring attention to how the Internet works the way it does. Why when you type in a domain name into your browser, it properly links to the website’s corresponding Internet Protocol (IP) address.

Since 1998, this names and numbers system has been managed under U.S. government contract via the Department of Commerce by the Internet Corporation for Assigned Names and Numbers (ICANN).

But few are aware that the reason this arrangement became possible was because in 1998 Congress passed a law defunding Commerce’s predecessor at Internet overseer, the National Science Foundation: “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.”

This provision cleared the way for Commerce Department oversight of the newly-formed ICANN, and Congressional primacy over Internet governance receded into the background. The arrangement, with the First Amendment as an umbrella over the government stewardship, helped to preserve the free and open Internet for almost 17 years.

Then, everything changed on March 14, 2014, when the Obama Administration announced that it was ready to transition responsibility over the names and numbers functions over to ICANN. The plan was to simply not renew the current contract, and allow ICANN to walk away with the functions previously performed by the National Science Foundation, and the Department of Defense before that.

The announcement drew fierce criticism from those who worried that foreign interests might be able to capture ICANN, and that the functions themselves would become ripe for censorship without the First Amendment protections in place.

Congress responded in bipartisan fashion in the 2015 budget, prohibiting the Commerce Department from relinquishing control of Internet governance, mirroring the 1998 language: “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.”

Once again, Congress was reasserting its power over this area, and the message was clear. The Administration could not act without Congress to create a global monopoly on Internet governance with neither accountability nor constitutional protections for Internet users.

But it seems not everyone has gotten the message. Speaking to the State of the Net conference at a session entitled, “Internet Functions in Transition: Is the US and the World Ready?” on January 27, Department of Commerce Assistant Secretary Lawrence Strickling indicated that the transition would still occur this year if ICANN was prepared.

“It is up to the community to determine a timeline [for transition] that works best for stakeholders,” Strickling said.

No, it is not up to the community to decide when the transfer will occur, Strickling. Congress has already effectively voted, and the President signed language that makes transition this year prior to the contract’s expiration impossible. That leaves Commerce with but one option: Renew the contract for two years as is provided in the contract itself.

The fact is, there will never be protections offered by ICANN or the international community as broad as the First Amendment and federal court remedy that currently exists today. In 2005, the Ninth Circuit Court of Appeals found in Verisign v. McNeil that non-profits, like ICANN, cannot be sued on First Amendment grounds, since they are not a government entity.  This leaves litigation against the Department of Commerce as the only judicial remedy in an Internet free speech case, an option which disappears if the federal government illegally relinquishes control over the Internet naming functions.

As Strickling knows, Article 4, Section 3 of the U.S. Constitution says that only “The Congress shall have power to dispose of … property belonging to the United States,” meaning Commerce cannot perform the transition without Congressional approval.

Yet, Strickling claims to see no such property interest for the federal government. In an April 28, 2014 letter to Rep. Darrell Issa (R-Calif.), he told Congress, “The need for legislative authority to transfer government property does not concern the provision of the IANA functions under contract since no government property or assets are involved in the contract.”

The most recent October 1, 2012 NTIA contract with ICANN provides a direct contradiction of Strickling’s fig leaf argument clearly stating, “All deliverables under this contract become the property of the U.S. Government.”

That is why members of Congress need to make it clear to Strickling that the contract must be renewed and that giving up U.S. oversight and sacrificing First Amendment protections over Internet governance is simply not going to happen.

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

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