Blocking Internet surrender helped unite Trump, Cruz and GOP

Sept. 23, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to Ted Cruz’ endorsement of Donald Trump for President, where he cited as one reason, “Internet freedom. Clinton supports Obama’s plan to hand over control of the Internet to an international community of stakeholders, including Russia, China, and Iran. Just this week, Trump came out strongly against that plan, and in support of free speech online”:

“Donald Trump doing a statement on the Internet giveaway helped facilitate Ted Cruz’ endorsement of Trump just two days later, in turn helping to unite grassroots Republicans nationwide in the sprint to November. This makes it all the more important that House and Senate Republicans unite in their resolve to stop the Internet giveaway in the continuing resolution before the end of the month. It would be tragic that an issue which unites Republicans would be scrapped just to pass a bill that funds the Obama administration’s priorities, including surrendering U.S. oversight of the Internet’s domain name system to foreign powers and multinational corporations, creating an unaccountable global monopoly and risking censorship of every American’s vital Internet freedoms.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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No Internet transfer without DOJ answers to antitrust concerns

Justice, Commerce Depts. stonewall House, Senate Judiciary Committees on Internet antitrust questions

Sept. 23, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement urging Senate and House negotiators to defund the transfer of U.S. oversight of the Internet domain name system, as the Departments of Justice and Commerce still have not adequately addressed antitrust and other outstanding legal concerns facing the Internet Corporation for Assigned Names and Numbers (ICANN) post-transition, and have even failed to respond to repeated requests for these legal analyses by the House and Senate Judiciary Committees:

“The failure of the Justice and Commerce Departments to provide the Obama administration’s views to the House and Senate Judiciary Committees on the very real antitrust questions facing ICANN post-transition is unacceptable and strongly advises that Congress delay the transition until at least December, to in the least provide more time for this oversight to be performed and for Congress to evaluate the proposal on its merits. Instead, the Internet transition question is falling through the cracks of haggling over the continuing resolution. Unfortunately, the continuing resolution remains the only vehicle available to obtain this delay and perform the proper oversight.

“The lack of cooperation by the Obama administration on the antitrust question casts serious doubt on whether the administration wants these questions vetted at all, otherwise clarity would have already been provided to Congress and in response to Americans for Limited Government’s now numerous Freedom of Information Act requests on legal and policy analysis performed or received by the Commerce Department on these questions. To date, it appears no analysis was conducted prior the June 9 when Commerce approved the framework for the transition. This is unacceptable and we applaud Chairmen Grassley and Goodlatte for continuing to demand answers to these questions before any transition can even be considered by Congress. These questions must not go quietly into the night, because once the Internet transition is performed we won’t get it back.”

Attachments:

For Immediate Release

Thursday, September 22, 2016

Grassley, Goodlatte Seek Details on DOJ’s Role In Proposed Transfer of Internet Stewardship Authorities

WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley and House Judiciary Committee Chairman Bob Goodlatte are calling on the Justice Department to explain its role in advising the Obama Administration in its plan to relinquish authority of key internet domain name functions.  In a letter to Attorney General Loretta Lynch, the chairmen express concern about the proposal, given an abundance of unanswered questions regarding internet openness, control of government domains, the disposal of government property and antitrust considerations.

“With so many outstanding questions remaining, especially in the areas in which DOJ would seem to have direct subject matter expertise, we believe it is important to understand what input and contributions the Attorney General and the DOJ made in blessing this transfer and in answering many of the specific questions that were raised by other agency participants during the process,” the chairmen said in the letter.

The chairmen raised specific concerns that the proposal relies upon a non-binding letter between the U.S. and the Internet Corporation for Assigned Names and Numbers (ICANN) to safeguard Top Level Domains such as .gov and .mil.  They are also seeking details of any legal analysis of the constitutionality of relinquishing ownership of U.S. government property, such as the root zone file, without congressional approval.  Finally, the chairmen are seeking details on any analysis DOJ conducted regarding the antitrust implications of terminating the U.S. government’s contract with ICANN.

Text of the Grassley-Goodlatte letter follows:

September 21, 2016

The Honorable Loretta E. Lynch
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Lynch:

The National Telecommunications and Information Administration (NTIA) has indicated that it intends to transfer key Internet domain name functions, known as the Internet Assigned Number Authority (IANA) functions, to a global multi-stakeholder community at the end of Fiscal Year 2016. As you are aware, when announcing this proposed transition on March, 2014, the NTIA specified that such a proposal must have broad community support and maintain the security, stability, and resiliency of the Internet Domain Name System (DNS), meet the needs of the multi-stakeholder community and enhance the multi-stakeholder model, and maintain the openness of the Internet.  Further, NTIA affirmed that it would “not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.”[1]

We’re sure you would agree that the openness, security, and stability of the Internet are of paramount importance to all Internet users, and yet a number of outstanding issues related to this proposed transition have yet to be answered, threatening these very values.  These include how the transfer will effect free speech and the openness of the Internet, if U.S. control of the .mil and .gov domains will be compromised, if the transfer will open the Internet to undue influence from foreign nations, if the transfer will lead to the improper conveyance of United States government property, or if the transfer affects any existing antitrust immunity and increases the likelihood of significant antitrust litigation.  Further, a recent Declaration by the Internet Corporation for Assigned Names and Numbers’ (ICANN) Independent Review Panel calls into question the credibility of ICANN’s ability to carry out basic duties of board self-governance.[2]  This document reveals that ICANN’s Board Governance Committee has “failed several transparency obligations,”[3] engaged in the “cavalier treatment”[4] of constituent requests, and failed to undertake an examination of whether ICANN staff or contractors complied with their obligations under the Articles and Bylaws of incorporation (finding that this failure is “itself a failure by the Board to comply with its obligations under the Articles and Bylaws.”).[5] These failures raise serious concerns about the ability ICANN to exercise proper corporate oversight and call into question ICANN’s organizational maturity.

Simply put, with so many unanswered questions and from what available evidence we do have, this transition is not in the best interest of a free, open, and secure Internet – nor is it in the best interest of the United States. Ending the United States contractual relationship with ICANN is dangerous and it is bad policy.

According to NTIA, the Department of Justice (DOJ) has participated in a “DNS Interagency Working Group” of U.S. government agencies who have been tasked with developing a methodology to assess whether or not the NTIA’s criteria are met. Specifically, the DNS Interagency Working Group has convened at least monthly to “coordinate and develop policies and positions related to DNS issues” and engage on “matters related to the IANA Stewardship Transition, including proposal review and assessment.”[6] NTIA recently announced that it expects the transition proposal will meet the agency criteria set forth in 2014, presumably with the support of the DNS Interagency Working Group, and plans to allow NTIA’s contract with ICANN to lapse.

As a key agency participant in the discussion surrounding the transfer of the IANA functions, we are interested in DOJ’s substantive input concerning the decision to transfer the IANA functions and to allow the federal government’s contract with ICANN to lapse.  With so many outstanding questions remaining, especially in areas in which DOJ would seem to have direct subject matter expertise, we believe it is important to understand what input and contributions the Attorney General and the DOJ made in blessing this transfer and in answering many of the specific questions that were raised by other agency participants during the process.

We are deeply troubled that DOJ’s Office of Legal Counsel (OLC) has not provided a formal legal opinion concerning these issues, including the constitutional questions. As you know, OLC provides authoritative legal advice to the President and all Executive Branch agencies, including legal advice on all constitutional questions. It is quite frankly shocking that the Commerce Department would fail to seek such an opinion before proceeding down this path.

NTIA has acknowledged widespread concerns related to the potential loss of control of U.S. governmentally administered domain names such as .mil and .gov.  In an attempt to allay these concerns, NTIA has stated that the operation of these Top Level Domains (TLDs) are not impacted by the transition and that “per the policies, procedures, and practices in place, .mil and .gov cannot be transferred without explicit agreement from the current administrators of those domains – namely, the U.S. government.”[7] Yet, the only mechanism NTIA has enacted to affirm that the United States is, and will remain, the administrator of .gov and .mil TLDs is through the exchange of non-binding letters with ICANN. As such, the only true assurance the United States has regarding the important .mil and .gov TLDs comes from a non-legally binding, two paragraph letter from ICANN CEO Goran Marby that calls on ICANN to honor and maintain its commitments with respect to the U.S. governmentally administered TLDs.  These assurances are certainly are not legally binding and could lead to the loss of the TLDs despite the declarations of NTIA and ICANN.

As you are likely aware, concerns continue to exist regarding whether or not the administration has the constitutional authority to conduct the IANA transition without the authorization of Congress because of the United States property interests in the root zone file – or other similar components of the Internet that were created and financed by the United States.  Under Article IV, Section 3 of the Constitution, Congress has the exclusive power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

Additionally, should NTIA end its contract with ICANN, any antitrust protections that ICANN currently enjoys as an organization operating under government control would end.  ICANN may then be vulnerable to a dramatic increase in antitrust suits and could be compelled to seek the protection of other governmental or quasi-governmental entities to limit this exposure.  Should ICANN seek a new antitrust shield in this manner, ICANN could be subject to limitations on political freedoms that come from groups such as the United Nations International Telecommunications Union.

With these issues in mind, please provide answers to the following questions:

  • With regard to the security of the .mil, .gov, and U.S. governmentally administered TLDs, does the Attorney General and the Justice Department believe that the mere exchange of letters between NTIA and ICANN is preferable to a binding legal agreement? If so why?  Please provide the Department’s rationale?
  • Did the DOJ advise NTIA regarding this resolution of government administered TLDs?
  • Should ICANN delegate U.S. government administered TLDs, contrary to current assurances, what action will the DOJ take?
  • With the lack of certainty over the disposition of government property in the IANA transfer, has NTIA ever referred this issue to DOJ for analysis or has DOJ ever conducted an analysis of this question on its own?  If so, what are its findings?
  • Does the Attorney General believe that there is no possibility that NTIA’s planned transition of the IANA functions may potentially relinquish ownership of United States property? What analysis did you conduct to come to this conclusion?
  • As a member of the DNS Interagency Working Group or otherwise, has the DOJ conducted a review of the antitrust implications of NTIA’s termination of its contract with ICANN?  If so, please provide a copy of this review.  If not, why not?

This unalterable action poses serious ramifications for the security and openness of the Internet.  As a member of the DNS Interagency Working Group, we’d like to know what role that you and the DOJ played in this transition. We appreciate your timely responses to these important questions no later than September 27, 2016.

Sincerely,

Charles E. Grassley
Chairman
Senate Committee on the Judiciary

Bob Goodlatte
Chairman
House Committee on the Judiciary

CC:

The Honorable Shaun Donovan
Director, Office of Management and Budget

 

 

[1] National Telecommunications and Information Administration, U.S. Department of Commerce, “NTIA Announces Intent to Transition Key Internet Domain Name Functions,” (March 14, 2014) available at https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions.

[2] Dot Registry, LLC. V. Internet Association Corporation for Assigned Names and Numbers (ICANN), ICDR Case No. 01-14-001-5004, Declaration of the Independent Review Panel, International Centre for Dispute Resolution (July 29, 2016) available at https://www.icann.org/en/system/files/files/irp-dot-registry-final-declaration-redacted-29jul16-en.pdf.

[3] Id. at 40.

[4] Id. at 44.

[5] Id. at 47.

[6] National Telecommunications and Information Administration, U.S. Department of Commerce, IANA Stewardship Transition Proposal Assessment Report 14 (June 2016) available at https://www.ntia.doc.gov/files/ntia/publications/iana_stewardship_transition_assessment_report.pdf.

[7] National Telecommunications and Information Administration, U.S. Department of Commerce, “Q and A on IANA Stewardship Transition,” (August 16, 2016) available at https://www.ntia.doc.gov/other-publication/2016/q-and-iana-stewardship-transition-0.

Democrat leaders declare Senate GOP CR dead on arrival

Sept. 22, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to reports that the Senate Republican continuing resolution, which failed to include language that would block the transition of U.S. oversight of the Internet’s domain name system, and has been declared dead on arrival by Democrat leaders, with Senate Appropriations Committee Ranking Member stating “We Democrats cannot vote for that substitute and urge others to vote against it”:

“Senate Democrats have declared the Republican continuing resolution, which surrenders U.S. oversight of the Internet to foreign powers and multinational corporations, dead on arrival. House Speaker Ryan needs to write a real continuing resolution that protects Internet freedom as the Senate version apparently has failed to not only fund Republican priorities, but even garner Democrat votes. The McConnell CR, if it somehow manages to pass, should be dead on arrival in the House. This is the last chance to stop the Internet surrender and protect digital freedom of Americans from censorship from abroad. If the Senate fails, the House must be the one to act. There is too much at stake.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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Have Republican leaders surrendered the Internet?

Sept. 22, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting Republican leaders in both houses of Congress for reportedly failing to include language in the continuing resolution that would block the transition of U.S. oversight of the Internet’s domain name system:

“It is being reported that Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan have surrendered U.S. oversight of the Internet’s domain name system in negotiations with the Democrats to fund the government. If true, it is now clear that Harry Reid never actually left the majority leader’s office and continues to call all the shots on what gets funded. Because of this tragic failure of leadership, multinational corporations and foreign powers will now dominate Internet governance for the rest of time in an unaccountable monopoly, and one day, it will be used to censor Internet content. And there will be nothing the U.S. can do about it.

“It is truly ironic that an issue which unifies the GOP, can be tossed aside because the minority in the Senate threatens to shut down the government.  If reports are true, the ultimate conclusion is that the GOP wields far more power when the Democrats control the Senate and they are forced to unify around conservative principles for political campaign purposes.  The current Majority in Name Only is hardly worth defending when the Democrats and the corporatists win every battle.

“On the House side, if the Speaker allows the transition to occur when the Obama Administration clearly ignored the previous defunds of the giveaway, then his entire call to restore Article One powers are not worth the paper they were printed on.  Should the Senate pass a deal that allows the giveaway, the only recourse is for the House of Representatives to simply say no. A vote for the continuing resolution is a vote to surrender the Internet to Google, Facebook, China, Russia, the United Nations and who knows who else. We will mourn the day we gave this away, and Republicans will have been the ones who rubberstamped it.”

“The good news is that the negotiations in the Senate are reportedly not complete and this course is not irreversible.  I pray that the reports being leaked are erroneous as the very freedoms that have made the Internet successful are at stake.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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ALG praises Trump opposition to Internet surrender

Sept. 21, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement praising Donald Trump for opposing the transition of the U.S. oversight over the domain name system to the international community:

“Donald Trump understands the importance of a free and open Internet and has proven that today by praising those Republicans in Congress for standing up against Democrats who are trying to play politics with Americans’ First Amendment freedoms. Mr. Trump’s weighing in on this issue while Congress wrangles over final details of the continuing resolution is particularly important as it demonstrates the solidarity of Republicans against Obama’s ill-conceived to surrender of the Internet. We urge Republicans to hold firm and stop the Internet giveaway by forcing the Obama administration to renew the vendor contract with ICANN for a two-year period. This would allow a Trump administration to do a full review on whether the transition should occur and whether ICANN should even continue as the U.S. government’s vendor in administering the Internet’s naming and numbering functions.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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Stopping Internet giveaway more important than quorum on Export Import Bank

Sept. 21, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to a Washington Post report that the Senate is close to a deal on the continuing resolution that would include blocking the transition of U.S. oversight of the Internet’s domain name system but that “Democrats have been unwilling to accept that addition unless language is also included that would free the Export-Import Bank to approve more deals”:

“If the Export Import Bank’s quorum becomes the reason why Congress could not block the Internet giveaway, the American people will never forgive the members of the Senate who thought pausing the bank for a few weeks or months pending another appointment to the bank’s board was more important.

“Continuing U.S. oversight of the Internet’s domain name system protects the First Amendment rights of everyone who uses the Internet and prevents the creation of a global monopoly that one day could censor the Internet absent U.S. governance. The odious Export Import Bank on the other hand has been around for 80 years and its charter was recently reauthorized by Congress. Regardless of the wisdom of that decision — we opposed it — but it was done anyway.

“If Congress wishes to revisit the charter, it should address the bank’s authorization to exist in a separate piece of legislation. The continuing resolution is the only vehicle available to stop the surrender of U.S. oversight of the Internet, and as such it must take precedence over short-term philosophical battles over the bank. If Congress fails to act to stop the Internet giveaway by September 30, U.S. oversight of the Internet and its First Amendment protections it affords will never be recovered. The Export Import Bank issue will likely be determined by the outcome of the November election. This isn’t even a choice. If anyone allows a temporary quorum issue on the Export Import Bank to become an excuse to surrender the Internet, those responsible will forever wear that albatross around their necks.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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Dick Durbin threatens government shutdown over ‘obscure and irrelevant’ Internet giveaway

Sept. 16, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting a statement by Sen. Dick Durbin (D-Ill.) threatening a government shutdown if Congress does not allow the Internet giveaway to go forward, where he said, “Can… Republicans dream up an any more obscure and irrelevant issue to stop the business of the American government? … I couldn’t believe it when they told me this could stop the CR”:

“If the Internet giveaway is such an ‘obscure and irrelevant’ issue then why do Durbin and Senate Democrats care about it? Are they saying they will or will not vote for the continuing resolution over stopping the Internet giveaway? They have already voted for funding bills last year and the year before when the Internet giveaway was defunded. Now suddenly we are supposed to believe that Dick Durbin and others of his ilk want to shut down the government over it and yet is ‘obscure and irrelevant.’ Maybe Team Durbin just cares more about their corporate overlords Google, Amazon and Facebook who are pushing for the end of U.S. oversight of the Internet’s domain name system.

“The simple fact that the government has not engaged in any due diligence to make certain that the transfer of Internet governance to its vendor would not unalterably disrupt the basic processes of the Internet due to antitrust litigation should make it clear to members on both sides of the aisle that extending the current contract at least another two years is the only prudent course. I am confident that Senator Durbin and his colleagues on the Democratic side of the aisle don’t want to be forever known as the jokers who broke the Internet due to their petulance and political gamesmanship.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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No lame duck Internet giveaway

Sept. 16, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement urging Congress to stop the Internet giveaway now and not wait until a lame duck session to attempt to stop the National Telecommunications and Information Administration (NTIA) from ceding the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN):

“Congress has a very specific choice. Are members going to allow President Obama to give away the Internet to a cabal of multinational corporations, creating an unaccountable global monopoly over Internet functions, or are they going to stick up for the interests of the American people and maintain U.S. oversight over the Internet’s domain name system. Simply kicking this issue into the lame duck session could create the extreme likelihood that these corporate interests will be able to secure the giveaway after the elections when voters will no longer be able to hold their elected leaders accountable.

“Failure to secure U.S. oversight of the Internet’s domain name system past the Obama administration, even if the desire is to somehow win the issue in the omnibus, will understandably fuel perception that the fix is in, and that the outcome has already been rigged. No political benefit to a temporary delay will materialize, because everyone will know the final battle remains on the horizon in December. And the American people will be forced to assume that the reason is because U.S. oversight of the Internet is scheduled to be terminated when it is too late for voters to react. Now is the time to fight and win this issue.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

GAO: Congress must act in order to stop the Internet giveaway

Sept. 15, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to a Government Accountability Office report on the plan by the National Telecommunications and Information Administration (NTIA) to transition the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN) at the end of the month:

“The GAO report affirms that Congress needs to act in order to stop the Internet giveaway. Although the GAO report did find that NTIA would otherwise have legal authority to transfer the IANA functions to ICANN, it also noted that the currently enacted prohibition against doing so prevents that from occurring. So while many media outlets are reporting that Congress has no say in whether the Internet giveaway should go forward, that is untrue. The fact is, for two fiscal years in a row, Congress has prohibited this transition from occurring. Those prohibitions were signed into law. Congress clearly has a role here in exercising its constitutional power of the purse, to prohibit the use of funds for policies it deems to be contrary to U.S. interests, like surrendering U.S. oversight of the domain name system.

“The fact that GAO notes that absent the prohibition, NTIA could just proceed with the Internet giveaway creates an even greater need for Congress to act than before. And not only to defund the giveaway, but to prohibit it from ever being transferred absent Congressional approval and authorizing Congress to sue in the event this or any future administration ignores Congress. Claim it as government property if that’s what it takes to stop this from ever happening. Now, if the Internet giveaway proceeds, it will be because Congress surrendered its Article One power of the purse and actively ceded oversight over the Internet’s domain name system to foreign powers. If the IANA functions contract with ICANN lapses, it will be because Congress let it lapse, and the American people will know who to blame. There will be no excuse for such a reckless action.”

Attachments:

“NTIA is currently prohibited by statute, through at least September 30, 2016, from using appropriated funds to relinquish its responsibilities regarding the IANA functions including the Internet domain name system.” Government Accountability Office, “Department of Commerce—Property Implications of Proposed Transition of U.S. Government Oversight of Key Internet Technical Functions,” Sept. 12, 2016 at http://www.gao.gov/assets/680/679691.pdf

Section 539(a), Consolidated Appropriations Act of 2016 at https://www.congress.gov/bill/114th-congress/house-bill/2029/text : “None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration … 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.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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ICANN argued for antitrust exemption in 2012, misleads WSJ readers

Sept. 13, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to a letter to the editor in the Wall Street Journal Sept. 11 by Internet Corporation for Assigned Names and Numbers (ICANN) general counsel John Jeffrey where he claims “Icann isn’t and never has been exempted from antitrust laws… No ruling in Icann’s favor has ever cited an antitrust exemption as the rationale”:

“In 2012, ICANN argued explicitly in federal court that by virtue of their government contract with NTIA, they were not subject to antitrust liability. It’s right on their website. In 2013, the federal district court judge agreed that even if ICANN were a monopoly, antitrust would not apply because of its government contract. That’s called an exemption, an exception to the rule, however you want to define it. Yet somehow ICANN general counsel John Jeffrey in one of the great legal contortions of all time wants to pretend the government contract does not presently shield ICANN from antitrust when clearly it does. ICANN has argued that it does. Why is this controversial?

“The problem is that after the government lets the IANA functions contract lapse, exposing ICANN to this liability that heretofore was only ever been contemplated, as early as 1998 in the Clinton white paper, which Jeffrey ironically quotes.

“Jeffrey must think Congress is stupid as in his arrogance he ignores previously stated Congressional concerns about the antitrust liability facing ICANN post-contract. Making matters worse, the Obama administration apparently performed no antitrust analysis during the entire period of the transition beginning in 2014, with no responsive documents to our Freedom of Information Act request for all legal and policy analysis of antitrust concerns. NTIA even ignored a CCWG stress test of post transition problems in work stream 2 that contemplated a potential antitrust lawsuit as disrupting ICANN’s ability to govern the domain name system. This is one of the biggest dangers inherent in the Internet giveaway and NTIA, ICANN and the multistakeholders have barely paid it lip service.”

Attachments:

ICANN explicitly argued in federal district court that it “obtained the sole authority to delegate TLDs and select registries through ‘its agreements  with the U.S. government.’ …  Put simply, ICANN did not conduct its operations   to unlawfully acquire the authority to designate TLDs and select registries; thus, this authority does not support name.space’s monopoly claim because the Sherman Act does not punish firms whose monopoly position has been ‘thrust upon’ them.” https://www.icann.org/en/system/files/files/memo-support-icann-motion-to-dismiss-30nov12-en.pdf

The federal district court agreed that “ICANN’s power to control which TLDs will be accepted into the DNS and the entities that will act as registries for those TLDs was delegated to it by the United States Department of Commerce.  As a result, whatever monopoly power ICANN may possess was ‘thrust upon’ it as the result of ‘historic accident’ rather than the result of ‘willful acquisition.’… Because whatever monopoly power ICANN possesses was given to it by the United States Department of Commerce and not the result of the ‘willful acquisition’ of monopoly power, the Court concludes that no amendment could cure the deficiencies in Plaintiff’s monopolization claim brought pursuant to Section 2 of the Sherman Act.  That claim is therefore dismissed with prejudice.” https://www.icann.org/en/system/files/files/order-granting-icann-motion-to-dismiss-04mar13-en.pdf

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at media@limitgov.org to arrange an interview with ALG experts including ALG President Rick Manning.

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