02.06.2017 2

What we still don’t know about the Internet surrender

By Robert Romano

The National Telecommunications and Information Administration (NTIA) sat on the most responsive documents to a Freedom of Information Act (FOIA) request by Americans for Limited Government for almost 3 years on what the legal and policy justification was for transitioning the Internet Assigned Numbers Authority (IANA) administering to a single entity, the Internet Corporation for Assigned Names and Number (ICANN), creating a global monopoly over the the Internet’s domain name system.

The documents entitled “talking points on legal justification for IANA,” which were mostly redacted citing exemptions under FOIA for interagency and legal memoranda, were dated March 25, 2014, just two days after L. Gordon Crovitz published a piece in the Wall Street Journal requesting the same legal analysis, potentially giving the appearance of a post-hoc legal rationale by the agency for the Internet transition.

“If these documents had been made available in a timely manner, even in the redacted form we now see, Americans for Limited Government and others would have had legal recourse to appeal the privileged determination that they were exempt documents. It took almost 3 years to produce the most responsive documents in our FOIA and only now is the agency claiming its privileged exemptions when it is too late to appeal,” Americans for Limited Government President Rick Manning noted in a statement blasting the agency.

“The fact that whatever legal justification existed for the Internet giveaway was sat upon until long after the transition was over, and did not take place until Obama left office, denied those opposed to the Internet giveaway a critical indication about whether any legal analysis was performed prior to the transition’s announcement,” Manning added.

This is not the first time a FOIA request by Americans for Limited Government showed a lack of legal analysis performed by the agency in creating the ICANN Internet monopoly.

On June 14, 2016 a FOIA request asked NTIA for “[a]ll records relating to legal and policy analysis developed by or provided to NTIA concerning antitrust issues for the Internet Corporation for Assigned Names (ICANN) if NTIA relinquishes its responsibilities” over the domain name system.

The agency contacted us and we clarified and limited what we were looking for to simply between Jan. 1, 2014 through June 14, 2016. That covered the entire period of the transition, which was proposed publicly March 14, 2014, and the framework put forth by ICANN that was approved by NTIA on June 9, 2016.

On Aug. 16 the agency responded to our FOIA request that “NTIA has conducted a thorough search for responsive records within its possession and control and found no records responsive to your request.” Nor did the agency claim any privileged exemptions under FOIA, which might have prevented such an analysis from being disclosed. Therefore, such an analysis did not exist.

On the other hand, that is was what we thought about legal analysis to do with the transition — which was sat on for almost 3 years. Perhaps the agency is sitting on its antitrust analysis as well, and we’ll discover that in another 3 years.

To be certain, the first document publicly available document on antitrust we’re aware of from NTIA was not posted until Aug. 16, in a Q&A purporting to answer a question about antitrust analysis, curiously the same exact day the agency responded to our FOIA. Again, in this Q&A NTIA used the same exact, carefully worded phrasing Strickling used in his testimony: “In its decision to move forward with the transition at this time, the U.S. Government did not identify any significant competitive issues relating to the proposed transition.”

Perhaps it just did not look very hard. The agency could have asent us the Cross Community Working Group (CCWG) on Enhancing ICANN Accountability’s March 10 document, which was addressed directly to NTIA administrator Lawrence Strickling, “IANA Stewardship Transition Proposal and Enhancing ICANN Accountability Recommendations.”

In Annex 15 on stress tests, on page 470, it highlights antitrust as a potential problem, daresay, a significant competitive issue: “Stress Test #3: Litigation arising from existing public policy, e.g., antitrust suit. In response, ICANN Board would decide whether to litigate, concede, settle, etc.”

The CCWG noted the consequences of an antitrust suit could include “Significant interference with existing policies and/or policy development relating to relevant activities,” and concluded that “Existing measures are inadequate.”

But that should have been no surprise since the issue had gone almost completely unaddressed for two decades. The June 1998 Clinton White Paper, which created the basis for ICANN’s original contract with the government, explicitly considered the antitrust issue at the outset: “Several commenters suggested that the U.S. Government should provide full antitrust immunity or indemnification for the new corporation. Others noted that potential antitrust liability would provide an important safeguard against institutional inflexibility and abuses of power.”

To which, NTIA replied, “Applicable antitrust law will provide accountability to and protection for the international Internet community. Legal challenges and lawsuits can be expected within the normal course of business for any enterprise and the new corporation should anticipate this reality.” Here, NTIA was saying that it would not provide antitrust immunity to ICANN when the transition occurred, creating a potentially great liability for the corporation.

Ironically, in 2012, when name.space sued ICANN for antitrust violations, ICANN argued in federal court that it was immune to such scrutiny because the Internet functions were “thrust upon” it by the government contracts.

This contradicted the government’s assurances in 1998 that antitrust law would hold ICANN accountable. Now, if and when ICANN is sued over the antitrust issue ICANN will surely claim immunity once again in court. And make no mistake, the only thing worse than an antitrust suit against ICANN, potentially breaking up the Internet, would be if ICANN were to prevail in such a suit, truly making it an unaccountable monopoly, no matter how anticompetitively it behaves.

If the government did ever consider the antitrust issue prior to deciding to hand over the domain name system, it did not do so publicly, and it has not yet turned up in our FOIA responses. The chairmen of the House and Senate Judiciary Committees, Rep. Bob Goodlatte (R-Va.) and Chuck Grassley (R-Iowa) were even unable to get an answer to these same questions prior to the transition going through. It is therefore incumbent on members of Congress to conduct further oversight, to get the documents that were shielded from disclosure under FOIA.

The American people have a right to know, and members of Congress have a duty to find out, why the U.S. government recklessly handed the Internet over to an unaccountable global monopoly worth billions — and what the agency thought the legal rationale prior to the transition’s announcement was, if any.

There are other unanswered questions that may be in the redacted ALG FOIA files, including the seemingly large role played by the White House in directing NTIA to perform the transition. There were memoranda circulated between agencies, including the National Security Agency the day the transition was announced, commenting on the transition, that have not been seen by members of Congress.

Even though the Internet transition to ICANN is over, committees of jurisdiction that are in a better position to get these documents should still be asking questions — because we still do not have all of the answers.

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


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