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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Sept. 8, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today praised Senate Commerce Committee Chairman John Thune, Senate Judiciary Committee Chairman Chuck Grassley, House Judiciary Committee Chairman Bob Goodlatte and House Commerce Committee Chairman Fred Upton for a letter sent to Attorney General Loretta Lynch and Commerce Secretary Penny Pritzker urging the Obama administration to reconsider transitioning the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN) at the end of the month:

“The actions today by Chairmen Thune, Grassley, Upton and Goodlatte are a momentous turning point in the fight to preserve the free and open Internet. Given the outstanding legal questions to do with the Internet giveaway, including the future status of ICANN’s antitrust immunity and whether NTIA even has the authority to pursue the transfer, the Obama administration has but one option, and that is to extend the contract with ICANN another two years. We praise the House and Senate Judiciary and Commerce committees for their diligent work on these issues, and they deserve the thanks of each and every American who uses the Internet to obtain news and information.

“However, absent Congressional action before the current contract with ICANN expires at the end of the month, NTIA will surely complete the transition of the IANA functions managing the Internet’s domain name system, and today’s announcement will be rendered meaningless. Congress must not only defund the transition, as it has the past two fiscal years, but also affirmatively require NTIA to extend the contract with ICANN at least another two years and include provision for Congress to immediately sue in federal court to prevent the Obama administration from proceeding with the transfer in defiance of the law.”

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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Sept. 7, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement urging Congress to not only defund the Internet giveaway again  but also to require the Obama administration to extend the current government contract with the Internet Corporation for Assigned Names and Numbers (ICANN) for another two years and to authorize Congress to take the administration to court should Obama fail to comply with federal statute forbidding the transfer:

“It is clear by now that the Obama administration has failed to do its homework on ceding the IANA functions to ICANN, having apparently based on FOIA responses performed no legal analysis prior to the transition’s announcement in March 2014 on whether it even has the authority to perform the transfer or on the antitrust issues the will arise from creating a global monopoly over the Internet’s domain name system.

“To stop this foolish surrender of a function that has been performed successfully by the government since the Internet was invented, Congress should not only once again defund the transfer, as it has the past two fiscal years, but also should require that the current government contract with ICANN be extended at least another two years, and authorize Congress to take Obama to federal court to prevent the transfer from being performed in defiance of the law.

“The federal government’s stewardship of the Internet has been a success story since the late 1990s, and we’d have to have lost our collective minds to cede oversight to foreign powers that do not hold U.S. interests to heart including the free and open Internet. There is no replacement for the First Amendment’s protection, which is a prerequisite for every action the government undertakes, including overseeing this contract. The surest way to prevent the Internet from being censored is to keep things the way they are, with the Constitution and if necessary the role of federal courts to apply it. Because once government oversight is gone, so too are the Internet’s First Amendment protections.”

Attachments:

Au Revoir to the Open Internet, L. Gordon Crovitz, June 29, 2014 at http://www.wsj.com/articles/gordon-crovitz-au-revoir-to-the-open-internet-1404076280

Halfway to Wrecking Internet Freedom, By L. Gordon Crovitz, Nov. 30, 2014 at http://www.wsj.com/articles/gordon-crovitz-halfway-to-wrecking-internet-freedom-1417387404

An Internet Giveaway to the U.N., By L. Gordon Crovitz, Aug. 28, 2016 at http://www.wsj.com/articles/an-internet-giveaway-to-the-u-n-1472421165

NTIA performed no antitrust analysis even as it proceeded with the creation of Internet monopoly, Aug. 26, 2016 at http://getliberty.org/ntia-performed-no-antitrust-analysis-even-as-it-created-global-internet-monopoly/

NTIA Freedom of Information Act response to Americans for Limited Government requesting antitrust analysis on relinquishing IANA functions to NTIA, Aug. 16, 2016 at https://getliberty.org/wp-content/uploads/2016/08/NTIA-No-Records-Response-Antitrust-Analysis-08.16.16.pdf

NTIA FOIA documents fail to show legal authority for Internet governance transfer, June 16, 2015 at http://getliberty.org/ntia-foia-documents-fail-to-show-legal-authority-for-internet-governance-transfer/

Freedom of Information Act (FOIA) Request to National Telecommunications and Information Administration (NTIA), March 27, 2014 at http://getliberty.org/wp-content/uploads/2014/03/DOC-NTIA-FOIA-re-ICANN-03-27-14.pdf

Freedom of Information Act (FOIA) interim response by the National Telecommunications and Information Administration (NTIA), June 30, 2014 at http://getliberty.org/wp-content/uploads/2014/06/DOC-NTIA_FOIA-Responsive-Docs-Set1.pdf

Freedom of Information Act (FOIA) further response by the National Telecommunications and Information Administration, June 15, 2015 at http://getliberty.org/wp-content/uploads/2015/06/DOC-NTIA_FOIA-Responsive-Docs-Set2.pdf

Freedom of Information Act (FOIA) further response by the National Telecommunications and Information Administration, Jan. 7, 2016 at https://getliberty.org/wp-content/uploads/2016/01/NTIAFOIAResponse1-7-2016.pdf

Freedom of Information Act (FOIA) further response by the National Telecommunications and Information Administration, March 14, 2016 at https://getliberty.org/wp-content/uploads/2016/03/NTIAFOIA3rdSet-3-14-16.pdf

Freedom of Information Act (FOIA) further response by the National Telecommunications and Information Administration, March 18, 2016 at https://getliberty.org/wp-content/uploads/2016/03/NTIAFOIAResponse4thSet3-18-16.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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Aug. 26, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement announcing a Freedom of Information Act response from the National Telecommunications and Information Administration (NTIA) regarding any antitrust analysis that was done by the agency with regards to ceding the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN):

“NTIA’s admission that they failed to consider the antitrust ramifications of transitioning governance over the Internet’s domain name system to ICANN since 2014, covering the entire period of the transition, is simply stunning. The antitrust implications were discussed in the 1998 White Paper prepared during the Clinton Administration that is effectively the Holy Grail for those seeking to know about Internet governance issues, yet somehow the politically blinded Obama Administration missed the obvious point that ICANN loses its anti-trust shield should the government relinquish control over the property to them. This, even as NTIA has in essence been preparing to create a global monopoly over the Internet’s domain name system. They didn’t even bother to ask if there would be any concerns with that. Simply unbelievable.

“The irony is that one of the false fronts put forward by those who are pushing the giveaway is that it will prevent a ‘breaking’ of the Internet, yet losing antitrust protection creates significant risk that Internet governance will be broken to bits, as different entities attempt to legally mirror ICANN domain name auctioning functions.

“Perhaps most importantly, the admission that anti-trust ramifications were not considered demonstrates that NTIA failed again to follow Congress’ mandate that they present a report on what could go wrong should the giveaway move forward. Rather than raise this obvious point and ask for a continuance of some form of antitrust exemption similar to Major League Baseball their failure to even stumble across this problem clearly demonstrates that the Obama Administration has given zero thought to the potential downside of this giveaway.

“This comes atop NTIA having apparently performed no legal analysis on whether it even had the requisite legal authority to relinquish the IANA functions in the first place prior to announcing the transition and NTIA violating Congress’ explicit prohibition on using funds to proceed with the transition the past two years even as the agency was traveling all the world and collaborating with multistakeholders working on the transition.

“Given this admission, Congress has no choice but to deny Obama’s attempt to giveaway the Internet governance functions through any means necessary including filing suit over the Executive Branch’s abrogation of Congress’ Article One power of the purse.  The Obama Administration has clearly been irresponsible in moving forward in this request, and it is Congress’ job to be the adult and stop this poorly conceived transition of the Internet. It is time this half-baked, illegal transition of critical Internet governance be thrown in the trash where it belongs. NTIA was so busy figuring out how it would turn over the Internet domain name system, apparently nobody stopped to ask if it could legally create such a monopoly.”

Attachments:

NTIA Freedom of Information Act response to Americans for Limited Government requesting antitrust analysis on relinquishing IANA functions to NTIA, Aug. 16, 2016 at https://getliberty.org/wp-content/uploads/2016/08/NTIA-No-Records-Response-Antitrust-Analysis-08.16.16.pdf

“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.” Federal Register Volume 63, Number 111 published on Wednesday, June 10, 1998, Pages 31741-31751, http://www.gpo.gov/fdsys/pkg/FR-1998-06-10/html/98-15392.htm

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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