Europe just took over the Internet with GDPR and the U.S. needs to take it back and review potential trade sanctions

May 25, 2018, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting the European Union’s new Internet regulations, the General Data Protection Regulation (GDPR) and urging the U.S. to respond with trade sanctions:

“The European Union’s new privacy regulations, GDPR, have gone into effect, forcing U.S.-based companies like Facebook and Twitter to comply with the new draconian anti-free speech scheme. Because the rules, Facebook, Twitter, Apple, and Google all are impacted negatively by compliance issues and have been left scrambling. Tens of millions of users and thousands of smaller companies are affected. Europe’s attempted cyber imperialism is forcing U.S. companies to comply with their rules or be fined tens millions of dollars per violation. This disrupts free markets, free trade and free speech.

“All of the privacy notifications Americans have been receiving, let’s be honest, have nothing to do with the concocted claims against a company known as Cambridge Analytica, which served as a proxy for the destructive impact of the new European regulations. Effectively, Europe’s regulations have broken the world wide web and the U.S. must intervene to protect Americans’ First Amendment rights.

“The first step that should be considered is bringing the DNS function back under U.S. control by renewing the NTIA contract with ICANN, providing that entity with the protection it needs from international pressures brought on the EU regulation. ICANN has been caught in GDPR as well. Next, the Department of Commerce should immediately review whether the GDPR violates trade between the U.S. and EU countries, and take immediate action to pressure the EU to rescind its ill-conceived regulatory takeover of the Internet.

“America’s invention of the Internet has been one of its greatest gifts to the world. The increased democratization of information is directly related to the Internet providing a free flow of information unfettered by government regulation. It is understandable for countries like Iran and China to fear an informed, diverse population. Europe’s 20th cnetury embrace of democratic pluralism is at odds with imposing this sort of group think on its citizens, and America must not stand for it. In short, too many Americans died to keep Europe free to allow pointy headed bureaucrats in Brussels to screw it up.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at [email protected] to arrange an interview with ALG experts.

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NTIA sat on legal justification for creating Internet monopoly for almost 3 years

Feb. 2, 2017, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting the National Telecommunications and Information Administration for sitting on the most responsive Freedom of Information Act (FOIA) documents for almost 3 years on what the legal and policy justification was for the transitioning the Internet Assigned Numbers Authority (IANA) administering the world’s domain name system to a single entity creating a global monopoly over the functions:

“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 except for the historical record.

“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. Now we know, even redacted form, that the only documents entitled ‘legal justification’ on page 163 were not completed until 11 days after the transition had already been announced, and just 2 days after questions about legal authority had been raised by the Wall Street Journal. The most transparent administration ever, indeed.”

To view online: http://getliberty.org/2017/02/ntia-sat-on-legal-justification-for-creating-internet-monopoly-for-almost-3-years/

Attachments:

FOIA final response by the National Telecommunications and Information Administration, Jan. 26, 2017 at https://getliberty.org/wp-content/uploads/2017/02/NTIAFinalResponse1-26-17.pdf

How to Save the Internet, L. Gordon Crovitz, March 23, 2014 at http://online.wsj.com/news/articles/SB10001424052702303802104579453263393882136 RE: “a spokesman for the Commerce Department’s National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis.”

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 FOIA 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

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

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

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

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

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

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

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at [email protected] to arrange an interview with ALG experts including ALG President Rick Manning.

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Internet chief ICANN making moves to go overseas or under international law, outside U.S. law?

Dec. 27, 2016, Fairfax, Va.—Americans for Limited Government senior editor Robert Romano today issued the following statement condemning the Internet Corporation for Assigned Names and Numbers (ICANN), which administers the world’s domain name system, for refusing to rule out a proposal that would take ICANN out from under U.S. law as a California-based corporation and instead incorporate it overseas:

“One of the preconditions under which the U.S. transitioned administration of the Internet Assigned Numbers Authority (IANA) functions is that would remain under U.S. law as a California-based corporation. Now, the ink on the transition has barely dried, and ICANN refuses to rule out proposals to take the corporation out from under U.S. law, potentially sending ICANN overseas or governed by international law. This is exactly what opponents of the transition warned would eventually happen if the transition proceeded. Congress failed to stop the Obama administration from surrendering U.S. oversight of the Internet, and now sooner than anyone thought we could be paying the price for that negligence. Were those who assured Congress that ICANN would remain in the U.S. lying, or is this a new development, with the international community now being emboldened to finish the job of globalizing the Internet, free of any U.S. legal oversight including antitrust?”

To view online: http://getliberty.org/2016/12/internet-chief-icann-making-moves-to-place-itself-under-international-law-outside-u-s-law/

Attachments:

“While discussion of ICANN’s place of incorporation is not central to the work of the incumbent subgroup, as per the recommendations of our WS1 report, should the subgroup identify an issue where it appears that the only apparent solution would be a change in ICANN’s place of incorporation, then the issue would be discussed, since we don’t want to rule out any discussions that can help the subgroup produce a better and complete outcome.” Mathieu Weill, ICANN CCWG Accountability Co-chair, Dec. 22, 2016 in response to Seun Ojedeji at http://mm.icann.org/pipermail/accountability-cross-community/2016-December/013529.html

“Let me re-state my question again: ‘is change of ICANN’s current jurisdiction of incorporation open for debate within WS2 hence can be an (or one of the) outcome from the jurisdiction sub-group’? Greg [Shatan]’s Response was ‘somewhat yes’ – if there is an issue that warrants it then it will be recommended. While I have no problem leaving such option open for discussion in future (perhaps by other group even though it’s been discussed significantly in the past), and of course the actions of the new US govt could trigger such need especially if the ICANN Board is convinced as such but that is not the case as as today.” Seun Ojedeji, Chief Network Engineer at Federal University Oye-Ekiti (FUOYE), Nigeria, Dec. 14, 2016 at http://mm.icann.org/pipermail/accountability-cross-community/2016-December/013461.html

Index threads at http://mm.icann.org/pipermail/accountability-cross-community/2016-December/subject.html and http://mm.icann.org/pipermail/accountability-cross-community/2016-November/013409.html

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at [email protected] to arrange an interview with ALG experts.

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Obama de facto veto threat on CR offers opportunity to stop Internet giveaway

Sept. 26, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to the de facto veto threat issued by President Barack Obama via White House Press Secretary Josh Earnest, who said, “I had an opportunity to talk with the president in the Oval Office about this proposal, and after that conversation it’s not at all clear to me that he is prepared to sign this bill because he believes that Congress has got some work to do”:

“If we’re just going to be back at the drawing board the next few days because President Barack Obama is going to veto the continuing resolution, it is better if Congressional Republicans go back and rework the language to stop the Administration from giving away oversight over Internet governance.  It is clear that there is no agreement on the funding bill. Any attempts to tie changes to the Ex-Im Bank to blocking the Internet giveaway represent a false choice. The House needs to enter the game and modify the Senate bill, sending compromise language that incorporates language directing that the Commerce Department not transition the Internet, but instead extends the ICANN management contract for a period of not less than two years.”

Interview Availability: Please contact Americans for Limited Government at 703-383-0880 ext. 106 or at [email protected] 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.

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 [email protected] 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 [email protected] 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 [email protected] 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 [email protected] to arrange an interview with ALG experts including ALG President Rick Manning.

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House, Senate Judiciary and Commerce Committees urge Obama to reconsider Internet giveaway

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 [email protected] to arrange an interview with ALG experts including ALG President Rick Manning.

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