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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Aug. 11, 2016, Fairfax, Va.—Americans for Limited Government today issued the following statement in conjunction with signing a coalition letter urging Congress to enforce its two-year prohibition on the transition of the Internet Assigned Numbers Authority (IANA) functions from the National Telecommunications and Information Administration (NTIA) to the Internet Corporation for Assigned Names and Numbers (ICANN):

“Congress must take available action to stop the illegal Internet giveaway by NTIA, which has been prohibited for the past two fiscal years, and still, NTIA takes action pursuing the transition. NTIA used prohibited agency resources to compile a report stating that the transition proposal met the agency’s criteria, when the transition in itself is illegal. Congress must act by defunding it once again in the appropriations process, and getting an injunction is necessary if NTIA moves in the direction of transition on August 15 when it is expected they will not announce any contract renewal with the current government vendor over the IANA function, ICANN.”

Attachments:

Coalition letter urging Congress to enforce prohibition on Internet giveaway, Aug. 10, 2016 at http://docs.techfreedom.org/Coalition_Letter_IANA_8.10.16.pdf

Letter to NTIA warning against illegal Internet giveaway, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.), June 27, 2016 at https://www.judiciary.senate.gov/imo/media/doc/2016-06-27%20GEG,%20Goodlatte%20to%20National%20Telecommunications%20and%20Information%20Administration%20(IANA%20Transition).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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June 27, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement praising Senate and House Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa) and U.S. Rep. Bob Goodlatte (R-Va.) for a letter to the National Telecommunications and Information Administration (NTIA) calling it “troubling that NTIA appears to have taken these actions in violation of this prohibition” of Section 539 of the Omnibus spending bill that forbids the NTIA from relinquishing control over the Internet Assigned Numbers Authority (IANA) functions to any group including ICANN:

“Sen. Grassley and Rep. Goodlatte’s leadership in protecting the Internet is one of the reasons that the transition has not already occurred, and now their letter to NTIA shows that powerful Senate and House leaders are lining up to defend the power of the purse from the Obama administration’s illegal Internet giveaway. NTIA is little more than a rogue agency,  illegally preparing to violate a federal statute by proceeding with the transition in spite of a clear prohibition. Now is the time to hold NTIA accountable and renew the prohibition for at least another year, forcing the current contract with ICANN to be renewed.

“Grassley and Goodlatte’s letter comes after Senate Commerce Committee Chairman John Thune has expressed skepticism of the transition, citing unanswered questions, and House Appropriations Commerce, Science and Justice Subcommittee Chairman Rep. John Culberson has warned the Commerce Department that is violating the defund. With so much uncertainty, renewing the contract is the only way to go.”

Attachments:

Letter from Sen. Chuck Grassley (R-Iowa) and U.S. Rep. Bob Goodlatte (R-Va.), June 27, 2016 at http://www.grassley.senate.gov/sites/default/files/judiciary/upload/2016-06-27%20GEG%2C%20Goodlatte%20to%20National%20Telecommunications%20and%20Information%20Administration%20%28IANA%20Transition%29.pdf

“[D]espite the Fiscal Year 2016 Omnibus spending bill’s prohibition on NTIA using any funds in furtherance of the transition, NTIA has been working to transfer the IANA functions by devoting staff time and commissioning outsides studies on the subject. Specifically Section 539 of the FY2016 Omnibus states that funds provided in the Act may not be used to relinquish NTIA’s responsibility for the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the IANA functions. However, in NTIA’s recent ‘IANA Stewardship Transition Proposal Assessment Report,’ NTIA states that, among other actions it ‘utilized a number of resources and tools’ to review and assess the IANA stewardship proposal. Further NTIA states that it utilized the DNS Interagency Working Group, comprised of 15 government agencies, to ‘engage U.S. federal government agencies on matters related to the IANA Stewardship Transition, including proposal review and assessment.’ As we are sure you are aware, it is a violation of federal law for an officers or employee of the United States Government ‘to make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.’ It is troubling that NTIA appears to have taken these actions in violation of this prohibition.”

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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June 9, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement praising House Commerce, Science and Justice Appropriations Subcommittee Chairman Rep. John Culberson (R-Texas) for a letter he wrote today to the Secretary of Commerce Penny Pritzker stating “Section 539 of the Fiscal Year 2016 Omnibus prohibits funds provided in the Act from being used to relinquish the NTIA’s responsibility for the authoritative root zone file and the IANA functions, and I will ensure this section is fully enforced. As we have previously discussed, I continue to oppose the use of any funds to plan for, prepare for, work on [the] transition [of] the Internet Domain Name System functions”:

“Chairman Culberson’s leadership in protecting the Internet has been instrumental in the stopping the transition to date, and his letter to Secretary Pritzker sends a clear message that he’s not backing down now. Culberson is defending the constitutional power of the purse from the Obama administration’s illegal Internet giveaway. Culberson is standing against a rogue agency that thinks it can do whatever it wants.

“Not only can the Commerce Department not transition the Internet domain name system functions to ICANN, it cannot even plan to or prepare for the transition. That is because it is not only illegal to violate a federal statute, it is also illegal to plan to or prepare to violate a federal statute.

“We applaud Culberson for standing up for the free and open Internet, for protecting the constitutional power of the purse and the rule of law.”

Attachments:

U.S. Rep. John Culberson Acts to Protect Internet Freedom, press release, June 9, 2016 at http://culberson.house.gov/news/documentsingle.aspx?DocumentID=398501

Letter to Secretary of Commerce Penny Pritzker from U.S. Rep. John Culberson, June 9, 2016 at http://culberson.house.gov/uploadedfiles/2016.06.09_doc_letter_on_iana.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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June 9, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in response to the “IANA Stewardship Transition Proposal Assessment Report” released today by the National Telecommunications and Information Administration:

“The Obama Administration’s Commerce Department has engaged in an evaluation of ICANN’s report on their suitability to take over Internet functions that are the property of the people of the United States. The problem is that, in doing so, the Obama Administration has clearly ignored the legal prohibition on expending funds to facilitate this Internet transition.

“NTIA has no authority to transition the IANA functions, let alone to review any such proposal. That is why Americans for Limited Government Foundation submitted a complaint to the Commerce Department Inspector General in regards to these clear violations to the Antideficiency Act that bars expenditures of funds for prohibited activities. NTIA administrator Lawrence Strickling has bound himself to the defund, saying in January 2015 that ‘The act does restrict NTIA from using appropriated dollars to relinquish our stewardship … with respect to Internet domain name system functions,’ but now instead he’s facilitating the transition for which there are no funds to consider.

“This clear slap in the face of Congress’ power of the purse transcends the important issue of whether the U.S. should divest their oversight over Internet governance and cuts to the heart of whether the power of the purse rests with Congress at all. As the author of the defund, Representative Sean Duffy, noted in a letter in January to ICANN, ‘The Commerce Department has no money to consider your proposal and I will continue to do everything in my power to ensure that it never does.’ If anyone can speak to the legislative intent of the defund, it is Duffy, who wrote it.

“Speaker Ryan has made reasserting Congress’ Article I powers a major talking point of his first year leading the House of Representatives, now he needs to prove it. Rather than wait for the giveaway to occur when there is little recourse, Speaker Ryan should join Representative Sean Duffy in putting language in must pass legislation that explicitly prohibits the transfer, and directs the Administration to extend the ICANN contract for two more years.

“This is no longer just about the foolhardy Obama plan to remove the U.S. from the role of protector of the Internet, and now is a plain Constitutional issue.  If Congress doesn’t stand up for their own power of the purse, then they might as well be disbanded to save the public treasury.”

Attachments:

• 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.”
• The Antideficiency Act at 31 U.S.C. § 1341(a)(1)(A) states that the federal government cannot, “make or authorize an expenditure or obligation exceeding an amount available in an appropriation fund for the expenditure or obligation.” An agency official violates the Antideficiency Act when they expend appropriated funds in violation of prohibitions in the appropriations act, “as the agency’s appropriations were not available for these prohibited purposes.” Federal officials who “knowingly and willfully” violate this prohibition commit a criminal offense and are subject to punishment of a fine of not more than $5,000 and a maximum jail term of two years.
• Sean Duffy (R-Wis.) letter to ICANN then-CEO Fadi Chehade, Jan. 13, 2016 at https://getliberty.org/wp-content/uploads/2016/01/16.01.13-ICANN-Transfer-Letter-to-Fadi-Chehad%C3%A9.pdf : “The Commerce Department has no money to consider your proposal and I will continue to do everything in my power to ensure that it never does.”
• Assistant Secretary of Commerce for Communications and Information Lawrence Strickling, State of the Net Conference, Jan. 27, 2015 at https://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-strickling-state-net-conference-1272015 : “The act does restrict NTIA from using appropriated dollars to relinquish our stewardship during fiscal year 2015 with respect to Internet domain name system functions. We take that seriously.  Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract’s current expiration date of September 30, 2015.  Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA’s role in approving changes to the authoritative root zone file prior to September 30.  On these points, there is no ambiguity.”
• Americans for Limited Government Foundation complaint to Commerce Department Inspector General, Feb. 1, 2016 at https://getliberty.org/wp-content/uploads/2016/03/NPM-Complaint-to-DOC-IG-Re-NTIA-Antideficiency-Act_02.01.16.pdf: “Despite the explicit prohibition, the NTIA is clearly engaged in activities that are designed to lead to the relinquishment of its responsibilities regarding Internet domain name system functions, including responsibility with respect to the authoritative root zone fine and the Internet Assigned Numbers Authority functions. The NTIA personnel have traveled to numerous conferences on internet governance and speeches from NTIA personnel clearly indicate that they are moving ahead as if Congress had not acted to prohibit their very actions.”
• “Why is NTIA still implementing Internet giveaway in the face of an explicit Congressional prohibition?” by Robert Romano, March 25, 2016 at http://netrightdaily.com/2016/03/ntia-still-implementing-internet-giveaway-face-explicit-congressional-prohibition/

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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May 24, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement in advance of testimony he is delivering today to the U.S. Senate Commerce Committee at 10 a.m. opposing a proposal by the National Telecommunications and Information Administration (NTIA) to give up U.S. government oversight of the Internet Assigned Numbers Authority (IANA) functions:

“One of the justifications for giving away U.S. oversight of the Internet’s naming conventions is to prevent a supposed fragmentation of the Internet. However, even the Obama administration admits that China is already fragmenting the Internet with its own root zone no matter what the U.S. and ICANN choose to do. Given that Internet fragmentation is a fact, proceeding with Obama’s reckless Internet transition is a solution in search of a problem and should be rejected due to its negative impacts on the free and open Internet.

“A private entity has no legal responsibility to uphold First Amendment freedoms of speech and of the press and of religion, so post-transition, there would be no constitutional protection in federal courts afforded to holders of domains using terms like liberty, should China or any other entity prevail in a censorship gambit.

“Moreover, nowhere in the multistakeholder proposal does it actually address the obvious antitrust concerns that arise with ICANN being the world’s only resolver of IP addresses and domain names, even though such lawsuits were anticipated in the 1998 Clinton Administration statement of policy that helped to establish ICANN. Either the lawsuits that begin after U.S. oversight and ICANN’s antitrust exemption go away will result in a fragmented Internet, or worse, one where ICANN and whoever controls it wielding absolute control over the Internet’s naming conventions.”

Attachments:

Testimony of Richard Manning, President, Americans for Limited Government, Before the Committee On Commerce, Science, & Transportation United States Senate Hearing entitled Examining the Multistakeholder Plan for Transitioning the Internet Assigned Numbers Authority, May 24, 2016 at https://getliberty.org/wp-content/uploads/2016/05/SenateCommerceCommitteeTestimony5-24-16.pdf

Chairman Thune, Ranking Member Nelson, and members of this distinguished committee, thank you for the opportunity to offer Americans for Limited Government’s views regarding the National Telecommunications and Information Administration’s (NTIA) plan to transition oversight of the Internet’s domain name system (DNS), including the Internet Assigned Numbers Authority (IANA) functions, to the Internet Corporation for Assigned Names and Numbers (ICANN).

The actions of Congress over the months ahead will determine if the primary value of maintaining a free and open Internet prevails or not.

Advocates for the transition have long held the concern that failure to move forward would in some way fracture the Internet, and that has been the rationale given for the U.S. to proceed with turning over the IANA functions to a new governance body led by the current vendor, ICANN, which handles these and other functions on behalf of the U.S. government. Last year, then-outgoing ICANN CEO Fadi Chehade stated that failure to transition the IANA functions would result in fracturing. Chehade stated, “ICANN’s community may fracture or fray slowly, becoming divided…The technical operating communities using IANA may go separate ways…” [1]

But that is not the real danger. Let me be clear, no multistakeholder system that can be devised will ever be as effective at protecting a free and open Internet as the current United States government oversight system.

It is probably safe to assume that everyone in this room agrees that protecting a free and open Internet is a primary value.  It is also probably safe to assume that everyone agrees that the Internet structure as currently administered by the United States government has provided that platform since its inception. In short, the Internet works, so the burden of proof on changing management over some of its core functions is on the proponents.

What is also undeniably true, based upon a State Department hosted May 16, 2016 blog post [2] by Daniel Sepulveda, [3] the Deputy Assistant Secretary of State and U.S. Coordinator for International Communications and Information Policy in the State Department’s Bureau of Economic and Business Affairs (EB) [4] and Lawrence E. Strickling, the Assistant Secretary of Commerce for Communications and Information and Administrator, National Telecommunications and Information Administration, is that the Internet is already being fractured by China which has developed an alternate root zone system as well as a separate naming convention.

Sepulveda and Strickling write, “The digital economy has become one of the most powerful engines for global economic growth. If left unchanged, China’s regulations would undermine some of the most fundamental aspects of the Internet –- openness, reliability, and interoperability –- within China. By creating its own rules for domain name management, China is threatening to fragment the Internet, which would limit the Internet’s ability to operate as a global platform for human communication, commerce, and creativity.”

Only the most naïve would believe that the government of China is going to be assuaged to not implement their own Internet censorship regime if only the United States turned a large portion of Internet governance over to a multi-national stakeholder community.

And those who believe that the IANA functions transition would temporarily stem China’s threat to fracture the Internet, need only look at China’s attempted censorship demands on the .XYZ top level domain name where the government of China demanded last year that the owner not allow 12,000 different words be accepted as domain names including “liberty” and “democracy” as revealing the terrible potential cost of maintaining the Internet’s “interoperability.”

Stunningly, the issue of possible content censorship in a post-transition world is left wide open by a proposal to insert into ICANN’s bylaws a commitment to respect “internationally recognized human rights.”  A May 20, 2016 letter by Senators Cruz, Lee and Lankford to Commerce Secretary Pritzker states this provision “would open the door to the regulation of content.  Inclusion of such a commitment would unquestionably be outside the historical mission of an organization whose functions are supposedly ‘very limited to the names and numbers and protocol parameters which are way down in the plumbing of the Internet.’” [5]

Cruz, Lee and Lankford continue writing, “However any provision, such as human rights, that is included in ICANN’s bylaws automatically becomes an integral part of ICANN’s core mission and, in this case, could provide a gateway to content regulation.”

Given the audacity of ICANN’s proposal before the transition has even occurred, Congress can be assured that if content is not regulated, then China or somebody else could aggressively fracture the Internet as the free exchange of ideas is antithetical to their national interest.  And if content is regulated, the Internet will cease to exist as a free and open system removing its DNA and unalterably changing it. What’s more, as this committee is well aware from the recent Facebook censorship allegations, a private entity has no legal responsibility to uphold First Amendment freedoms, so post-transition, there would be no constitutional protection afforded holders of domains using terms like liberty, should China or any other entity prevail in a censorship gambit.

What’s more it is increasingly clear that any attempt to transition the Internet will face significant legal hurdles disrupting any orderly transfer.

The first legal issue surrounds whether President Obama has the authority to conduct the transfer without going through the Congressionally established legal channels for the disposal of property.  The Administration has argued that they would not be transferring property so the law doesn’t apply, yet, the contracts that govern the relationship between the U.S. government and ICANN repeatedly refer to property negating that argument.

Incredibly, the same Obama Administration that seeks to deny that ICANN manages U.S. government property, put out a Request for Proposals in 2012 for the contract that ICANN manages due to the vendor’s failure to respond to various accountability changes that were being demanded.  Yet, today, they ask you to give some iteration of that same unresponsive vendor permanent power with little if any accountability to either the U.S. government or you as representatives of the people of the United States.

What’s more, ICANN has been exempt from any antitrust questions of their highly lucrative monopoly in creating and selling top level domain names due to their being protected by the very contract they seek to get out from under. Congress has not acted to provide ICANN any antitrust exemptions should the transfer occur. Not that it should, but as a result, it is reasonable to assume that legal challenges would be forthcoming should the transfer occur attempting to break ICANN’s single source power to price current and future top level domain names, manage existing top level domain leases and create new top level domain names.

The United States government stands as the protector of freedom on the Internet. Vendors like ICANN help bring specific expertise to manage the day to day operations of the Internet, and the system functions well when the United States government plays its oversight role to prevent abuse.

Absent the U.S. government’s light handed oversight, the idea of a free and open Internet will certainly become a thing of the past.

I urge you to use every legislative power at your disposal to stop the planned transition of these critical Internet functions to ICANN. The rationale for the transition is moot and allowing the Obama Administration to proceed would create an open door to future censorship. I submit the remainder of my testimony for the record. Yet I must remind you to consider if you choose to proceed not only how the NTIA transition plan might work, but what could happen to the free and open Internet if it does not.

Does the NTIA have legal authority to transfer IANA functions to ICANN?

On March 25, 2014, Rep. Blake Farenthold and Rep. Darrell Issa issued a letter ^[6] to Assistant Secretary for Communications of the National Telecommunications and Information Administration (NTIA) Lawrence Strickling regarding the NTIA’s March 14, 2014 announcement ^[7] of its intention to transition key Internet domain name functions to the Internet Corporation for Assigned Names and Numbers (ICANN) and the global multistakeholder community. The letter specifically asked Strickling, “Does the executive branch have unilateral authority to transfer control over the Internet addresses and root zone management of domains?”

On Jan. 14, 2015, Issa and Farenthold actually received a reply from Strickling on April 28, 2014. ^[8] In it, Strickling stated: “NTIA’s announcement marks the final phase of privatization of the Internet domain name system (DNS) first outlined by the U.S. Government in 1998 after broad consultation with stakeholders in the development of Statement of Policy,” referring to Federal Register Volume 63, Number 111 published on Wednesday, June 10, 1998, Pages 31741-31751. ^[9]

Strickling added, “Our action is fully consistent with the 2012 resolution, H.Con.Res.127, that called on the United States to continue to support a global Internet free from government control and to preserve and advance the successful multistakeholder model that governs the Internet.”

On the specific question of legal authority, Strickling wrote: “In 2000, NTIA did not contract with ICANN to procure the IANA functions services as an assertion of ‘control’ over the Internet DNS. Rather NTIA contracted with ICANN as a temporary measure to carry out the government’s policy to allow the private sector to take leadership for management of the Internet DNS. By performing the IANA functions in a competent manner for almost a decade and half, ICANN has established itself in this role and there is no longer a need to maintain a government contract designating it to perform these functions. Just as federal agencies can enter into contracts they need to fulfill their missions without specific legislative authority, federal agencies can discontinue obtaining services when they no longer need them. As NTIA made clear at the time of its Statement of Policy, it intended only to procure the IANA functions services until such time as the transition to private sector management of the Internet DNS was complete.”

Finally, in a footnote Strickling stated referencing a 2000 then-General Accounting Office (GAO) report on the potential need for legislative action in this area: “GAO’s discussion about the need for legislative authority to transfer government property does not concern the provision of the IANA functions under contract since no government property or assets are involved in the contract.” ^[10]

The IANA functions contract, government property and Article IV, Section 3 of the Constitution

Although Strickling claimed in the letter that “no government property or assets are involved in the contract,” here, Strickling clearly mischaracterized the contract. To wit, the current October 1, 2012 NTIA contract with ICANN explicitly states that “All deliverables under this contract become the property of the U.S. Government.” ^[11]

Deliverables under the contract include “technical requirements for each corresponding IANA function,” “performance standards in collaboration with all interested and affected parties … for each of the IANA functions,” and “a fully automated root zone management system … [that] must, at a minimum, include a secure (encrypted) system for customer communications; an automated provisioning protocol allowing customers to manage their interactions with the root zone management system; an online database of change requests and subsequent actions whereby each customer can see a record of their historic requests and maintain visibility into the progress of their current requests; and a test system, which customers can use to meet the technical requirements for a change request; an internal interface for secure communications between the IANA Functions Operator; the Administrator, and the Root Zone Maintainer,” among other items.

Further, ICANN collects annual revenues of more than $100 million a year, making it property of real value.

Article 4, Section 3 of the U.S. Constitution states that only “The Congress shall have power to dispose of … property belonging to the United States.”

It therefore follows that NTIA cannot perform the transfer of the IANA functions to ICANN without a vote in Congress, or some other authorizing statute, for example, 40. U.S.C., Chapter 5, Subchapter III, “Disposing of property” (see below).

In addition, the IANA itself reverts to the Commerce Department upon termination of the contract: “the Government may terminate the contract for default.” The contract even provides for the possibility of IANA being performed by another entity: “In the event the Government selects a successor contractor, the Contractor shall have a plan in place for transitioning each of the IANA functions to ensure an orderly transition while maintaining continuity and security of operations.” These provisions further indicate that upon conclusion of the contract on Sept. 30, 2016, the Commerce Department remains in possession of the IANA functions.

Disposal of property provided under 40 U.S. Code, Chapter 5, Subchapter III

In Strickling’s letter to Rep. Issa, he explicitly denied that there was any property or assets involved in the transfer of the IANA functions to ICANN: “the need for legislative authority to transfer government property does not concern the provision of the IANA functions under contract since no government property or assets are involved in the contract.” This despite the fact the contract, explicitly states, “All deliverables under this contract become the property of the U.S. Government.”

One reason to deny this might be because, if it were government property, then it would fall under an onerous process for disposing of property under the 40 U.S.C., Chapter 5, Subchapter III, “Disposing of property.” The disadvantage to NTIA and ICANN would be that the IANA functions would have to come up for competitive bid as provided in 40 U.S.C. 545 (a).

Or if a negotiated sale as provided in 40 U.S.C. 545 (d)(1), it would have to done at “fair market value”: “the sale must be publicized to an extent consistent with the value and nature of the property involved and the price established must reflect the estimated fair market value of the property.”  Since this is an entity that does more than $100 million a year of revenue, the fair market value of the IANA functions — we’re talking about a global monopoly for allocation of an unlimited number of IP addresses, domain names, and top-level domain names — it should be worth billions!

Or, if disposal through a contract broker as provided in 40 U.S.C. 545 (c), “wide public notice of the availability of the property for disposal” would be required: “Disposals and contracts for disposal of surplus real and related personal property through contract realty brokers employed by the Administrator shall be made in the manner followed in similar commercial transactions under regulations the Administrator prescribes. The regulations must require that brokers give wide public notice of the availability of the property for disposal.” Yet, no such notice has been given.

The Antitrust Implications under 40 U.S.C. 559 (b)(1)

But perhaps most critically, if Strickling were to acknowledge there is property at stake, the disposal of such property to a private interest would invoke antitrust.

40 U.S.C. 559 (b)(1) states: “An executive agency shall not dispose of property to a private interest until the agency has received the advice of the Attorney General on whether the disposal to a private interest would tend to create or maintain a situation inconsistent with antitrust law.” Since Strickling’s position is that there is no property involved, NTIA would not have sought the Attorney General’s advice the disposal of property to a private interest prior to the March 2014 announcement.

That is a huge liability for ICANN, and potentially for anyone involved at the agency if the provision of the contract stating “All deliverables under this contract become the property of the U.S. Government” was deliberately ignored. No more so than because 15 U.S.C. Section 2 prohibits and makes a felony any attempt “to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. Sections 13 and 14 forbid any business practice where the effect “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.”

Antitrust law challenges to IANA functions administrator were anticipated in the 1998 statement of policy: “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 responded, saying it would seek no such immunity for the corporation and that antitrust would actually help keep the corporation in line: “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.” ^[12] Is that not still a danger today?

Did NTIA even conduct any legal analysis about whether it had the authority to proceed with the transfer?

In an April 2, 2014 letter to Assistant Secretary of Commerce Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA), 35 Senate Republicans including Sen. John Thune (R-S.D.) and Sen. Marco Rubio (R-Fla.) sought “clarification regarding the recent announcement that NTIA intends to relinquish responsibility of the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community.” [13]

In part, the letter questions the legal basis for the Commerce Department to perform the transition of vital Internet names and numbers functions, citing a 2000 report by the then-U.S. General Accounting Office, which stated, “it is unclear if the Department has the requisite authority” to transfer control of the IANA functions to a private entity. The Senate letter requests “the Administration’s legal views and analysis on whether the United States Government can transition the IANA functions to another entity without an Act of Congress.” [14]

Yet, to date, the White House has failed to produce the legal basis for transferring the IANA functions without Congress, despite numerous requests. As revealed on March 23, 2014 by the Wall Street Journal’s L. Gordon Crovitz: “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.” [15]

The Crovitz report prompted Americans for Limited Government to file a Freedom of Information Act (FOIA) request with the NTIA requesting the legal basis for its plans to transition control over Internet governance to some as of yet unnamed international body. The FOIA request includes “All records relating to legal and policy analysis developed by or provided to the National Telecommunications and Information Administration that support its decision to ‘transition key internet domain name functions,’ including any analysis showing whether the NTIA has the legal authority to perform the transition.” [16]

The Department’s interim response to the FOIA request, [17] which was referenced in the Wall Street Journal on June 29, 2014 by Crovitz, [18] still failed to produce the legal analysis. And the agency’s many responses since [19] [20] [21] [22] have not produced any legal analysis supporting the transition, nor has the agency claimed any privileged exemptions under the FOIA Act. Meaning, such an analysis being conducted prior to the transition being announced might not even exist.

Is NTIA already violating the Congressional defund barring the transition of the IANA functions passed the past two years?

In Singapore on Feb. 15, 2015, Assistant Secretary for Communications and Information at the Department of Commerce Lawrence Strickling answered a question about why he believed the National Telecommunications and Information Administration (NTIA) was still allowed to plan transitioning the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN) in spite of a thrice-enacted prohibition ^{[23] [24] [25]} by Congress barring the use of funds to engage in said transition, including attending such conferences at taxpayer expense.

Strickling replied:

“So yes there was a rider attached into our budget in the budget bill last December that said that we can’t spend appropriated dollars to complete transition before the end of next September. And so we have taken that seriously and I’ve reported out that there will not be a transition before next—the end of next September. At the same time though there was some commentators, not necessarily anybody with any expertise were saying ah this shuts down NTIA. They have to sit on the sidelines and not do anything. You know, like our hands are tied. And so that concerned us. We didn’t read the bill that way or the law that way and we’ve consulted with — informally with both the House and the Senate, both Democrats and Republicans to get an understanding as to what exactly they intended. So one of the things was even in the rider it said you must provide us regular reports and updates on how the transition is going. So they clearly intended us to do things like come to the ICANN meetings and watch and report back what’s going on. We clearly are participating in the GAC and none of that affects that. And the only real issue was to what extent do we provide feedback during the process to the community. And on that, you know, the assurances I got from most of the staff on the Hill was they didn’t see any problem with that because… we want to protect the interests of the United States in all of this.” ^[26]

Americans for Limited Government Foundation President Nathan Mehrens has filed a complaint with the Commerce Department Inspector General David Smith on Feb. 1, ^[27] stating, “Despite the explicit prohibition, the NTIA is clearly engaged in activities that are designed to lead to the relinquishment of its responsibilities regarding Internet domain name system functions, including responsibility with respect to the authoritative root zone fine and the Internet Assigned Numbers Authority functions. The NTIA personnel have traveled to numerous conferences on internet governance and speeches from NTIA personnel clearly indicate that they are moving ahead as if Congress had not acted to prohibit their very actions.”

As for Strickling’s citing of reporting requirements that were included in the spending bills, these do not authorize working on the relinquishment of the IANA functions specifically because they cannot supersede the statute.

In the 2015 omnibus spending bill, Congress required NTIA to submit a report due January 30 “regarding any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States.” ^[28] That does not authorize any work on relinquishing the Internet, except to produce NTIA’s backup plan in case anything went wrong with such a transition.

Congress also directed “NTIA to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA’s role with respect to ICANN or IANA activities.” ^[29]

This reporting requirement was not fully followed when NTIA most recently unilaterally modified its contract with ICANN on August 4 allowing for a short-term extension. ^[30] According to NTIA Administrator Strickling, Congress was not notified of the contract extension until Friday, August 14, after the modification to the contract had already gone into effect. ^[31]

Again, these reporting requirements were very specific and narrowly tailored to ensure Congress would be notified of any changes to the NTIA contract with ICANN and of the agency’s contingency plan in case any IANA functions transition goes awry. None of them authorized continued work on the transition.

As for the claim by Strickling that he informally consulted with Congressional staff about the intent of the prohibition, that is no legal standard whatsoever. As Mehrens noted in the Inspector General complaint, “it is not Hill staff that decide whether there is a problem, but rather the actual language passed by Congress should be examined.”

Americans for Limited Government Foundation has since been informed by the Inspector General that they have referred the matter for an investigation.

As Congress works to affirm its commitment to restoring the Constitution’s Article I separation of powers, including the power of the purse, a great place to start would be with prohibitions on the use of funds that Congress has already enacted. With NTIA clearly violating the prohibition barring the use of funds to engage in the IANA functions transition, plus not even meeting with the reporting requirements set for by Congress in the 2015 omnibus spending bill, there should be legislative redress, and that should be requiring NTIA to extend the current contract with ICANN for another two years.

Conclusion

While many of my esteemed fellow panelists today will be examining in great depth the multistakeholder plan for NTIA’s transition of the IANA functions, and rightly so, the testimony I intend to deliver today is much more of a gut check. Mr. Chairman, the real questions you must consider today and the days that follow are whether NTIA — and indeed the members of this committee and Congress as a whole — have done their own due diligence. That is, in ensuring whether this proposed transition is even lawful, serves U.S. interests and preserves the free and open Internet that we all today take for granted. And finally, whether surrendering oversight of the Internet’s names and numbers is even a good idea.

Failing in these key pillars, we risk creating an unaccountable Internet that is beyond any law or authority, acts openly against U.S. interests and is anything but free and open. One that taxes users of the Internet at will, tramples upon property rights and threatens the religious and civic liberties of peoples around the world. Or, one that is no longer authoritative, splinters into multiple root zones and cannot maintain control over its framework as it splits into irreconcilable chaos, hindering global communications and commerce.

Today, the Internet works.

It is free and open. Users of the Internet, high and low, have a ready, robust recourse in federal courts to adjudicate any and all First Amendment claims should censorship ever occur in the fulfillment of the current U.S. government contracts and cooperative agreements. That it hasn’t occurred is a testament to the virtue of the current U.S. oversight. But members of this committee should not take false comfort or become complacent. Much like the U.S. nuclear deterrent, we do not consider the absence of a nuclear exchange as reason to suddenly begin disarming our vast arsenal of warheads. U.S. oversight of the Internet has enabled the Internet to take on our uniquely American character for openness and entrepreneurship. Somebody has to be standing on the wall, and it is undoubtedly better to have the current, underappreciated constitutional system that says the root zone operator, ICANN, a U.S. government contractor, cannot violate the First Amendment rights of anyone who uses the Internet or else they go to court — than to leave it to the forces of globalization and profit, or foreign powers who might capture the function, to determine what shall be free and what shall be open.

In 1998, groups like the Electronic Frontier Foundation (EFF) criticized the transfer of DNS to a private foundation like ICANN. “Internet administration has always guaranteed free speech and due process, since it has been done by U.S. Government contractors who are required to follow the U.S. Constitution. If the New IANA moves Internet administration out from under the U.S. Government, as there is general agreement to do, the public will lose these guarantees,” Shari Steele, Staff Counsel at EFF warned at the time. [32] These concerns have not been raised since, and certainly not during this process.

The Internet as we know it depends on there being a single, authoritative source for the names and numbers in order to work. For, while the government-overseen contracts and agreements are in place to establish the rules of the road, ICANN, Verisign, the regional registries, etc. are all shielded from antitrust scrutiny. Such pitfalls of collusion, monopoly power and price gouging might have arisen otherwise if the Internet had been brought up singularly in the private sector. Instead today’s single, usable and affordable Internet, again, is a virtue of U.S. oversight. It is a monopoly, yes, but a regulated one that can be pulled back if needs be, where claims of U.S. government property over the IANA functions act simply as a failsafe — just in case anything goes wrong. We must consider whether trading the current system for a single, unaccountable monopoly beyond law or competition, or one that could be subject to antitrust suits the moment it engages in anticompetitive activities, splintering the Internet, could actually be a far worse outcome. Antitrust law challenges to the IANA functions were fully anticipated in the 1998 statement of policy: “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.” ^[33] But throughout this entire process, nobody has really considered the antitrust fallout of the transition.

The Internet in its current form is in fact held accountable by the U.S. contracts. In 2012, NTIA put up the IANA functions for a request for proposals, [34] to see if anybody else besides ICANN might perform the functions but, mostly, to ensure that ICANN realized its authorities could be revoked as a fallback if the U.S. deemed it necessary.

A fallback plan, mind you, that without the current contract, the U.S. will lack. In the 2015 omnibus spending bill, Congress required NTIA to submit a report due January 30 “regarding any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States.” ^[35]

In response in its first quarterly report, NTIA told Congress that “Our preliminary answer is that the criteria for the plan that NTIA established in its March 2014 announcement will ensure an outcome that is not ‘deleterious’ to the United States.” ^[36]

Besides this vague assurance, NTIA never produced its contingency plan should the IANA functions transition harm U.S. interests in its subsequent quarterly reports to Congress. ^{[37] [38] [39] [40]} That is to say, Mr. Chairman, there is no backup plan should the Internet become an unaccountable monopoly, subjected to foreign capture or broken into hundreds of pieces — even though Congress required there to be such a plan. You’ve got the plan for transition, but no fallback position.

In short, the dangers of the IANA functions transition and leaving U.S. oversight behind include:

1)                  The plan necessarily lacks First Amendment protections for the Internet naming conventions because the government contract is the only way for anybody to invoke the First Amendment;

2)                  The plan lacks antitrust protections for ICANN without the government contract, and Congress does not appear to anticipate any need to offer an antitrust exemption to ICANN. Not that it should, as it might lead to other unintended consequences;

3)                  The plan lacks Congressional authority;

4)                  The plan could lead to an Internet that is either an unaccountable monopoly or one that is fractured, either way it could end up being less free and open;

5)                  Neither Congress nor NTIA has any backup plan if anything goes wrong.

Thank you for allowing me to present Americans for Limited Government’s rationale for ardently opposing the proposed transition.

[1] http://domainincite.com/19390-chehade-outlines-five-ways-icann-could-die

[2] https://blogs.state.gov/stories/2016/05/16/china-s-internet-domain-name-measures-and-digital-economy#sthash.m76i03qf.dpuf

[3] http://www.state.gov/r/pa/ei/biog/bureau/209063.htm

[4] http://www.state.gov/e/eb/

[5] http://www.cruz.senate.gov/?p=press_release&id=2646

[6] http://farenthold.house.gov/uploadedfiles/icann.pdf

[7] http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions

[8] http://getliberty.org/wp-content/uploads/2015/01/NTIA_Letter_to_Rep-_Issa_4-28-14.pdf

[9] http://www.gpo.gov/fdsys/pkg/FR-1998-06-10/html/98-15392.htm

[10] http://www.gao.gov/new.items/og00033r.pdf

[11] http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf

[12] “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. The Green Paper envisioned the new corporation as operating on principles similar to those of a standard-setting body. Under this model, due process requirements and other appropriate processes that ensure transparency, equity and fair play in the development of policies or practices would need to be included in the new corporation’s originating documents. For example, the new corporation’s activities would need to be open to all persons who are directly affected by the entity, with no undue financial barriers to participation or unreasonable restrictions on participation based on technical or other such requirements. Entities and individuals would need to be able to participate by expressing a position and its basis, having that position considered, and appealing if adversely affected. Further, the decision making process would need to reflect a balance of interests and should not be dominated by any single interest category. If the new corporation behaves this way, it should be less vulnerable to antitrust challenges.” 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

[13] http://www.thune.senate.gov/public/index.cfm/2014/4/thune-rubio-demand-answers-from-administration-on-internet-transition

[14] http://www.gao.gov/new.items/og00033r.pdf

[15] http://online.wsj.com/news/articles/SB10001424052702303802104579453263393882136

[16] http://getliberty.org/wp-content/uploads/2014/03/DOC-NTIA-FOIA-re-ICANN-03-27-14.pdf

[17] http://getliberty.org/wp-content/uploads/2014/06/DOC-NTIA_FOIA-Responsive-Docs-Set1.pdf

[18] http://online.wsj.com/articles/gordon-crovitz-au-revoir-to-the-open-internet-1404076280

[19] http://getliberty.org/wp-content/uploads/2015/06/DOC-NTIA_FOIA-Responsive-Docs-Set2.pdf

[20] https://getliberty.org/wp-content/uploads/2016/03/NTIAFOIA3rdSet-3-14-16.pdf

[21] https://getliberty.org/wp-content/uploads/2016/03/NTIAFOIAResponse4thSet3-18-16.pdf

[22] https://getliberty.org/wp-content/uploads/2016/01/NTIAFOIAResponse1-7-2016.pdf

[23] PL 114-113, H.R.2029, Section 539.

[24] PL 114-53, H.R.719, Section 101.

[25] PL 113-235, H.R.83, Section 540.

[26] http://singapore52.icann.org/en/schedule/tue-ncuc/transcript-ncuc-10feb15-en.pdf

[27] https://getliberty.org/wp-content/uploads/2016/03/NPM-Complaint-to-DOC-IG-Re-NTIA-Antideficiency-Act_02.01.16.pdf

[28] http://www.circleid.com/posts/20141210_breaking_us_government_funding_bill_delays_iana_transition/

[29] http://www.circleid.com/posts/20141210_breaking_us_government_funding_bill_delays_iana_transition/

[30] https://www.ntia.doc.gov/files/ntia/publications/mod_0003_for_sa1301-12-cn-0035_signed.pdf

[31] https://www.ntia.doc.gov/blog/2015/update-iana-transition

[32] https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/19980924_eff_new_iana_pressrel.html

[33] “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. The Green Paper envisioned the new corporation as operating on principles similar to those of a standard-setting body. Under this model, due process requirements and other appropriate processes that ensure transparency, equity and fair play in the development of policies or practices would need to be included in the new corporation’s originating documents. For example, the new corporation’s activities would need to be open to all persons who are directly affected by the entity, with no undue financial barriers to participation or unreasonable restrictions on participation based on technical or other such requirements. Entities and individuals would need to be able to participate by expressing a position and its basis, having that position considered, and appealing if adversely affected. Further, the decision making process would need to reflect a balance of interests and should not be dominated by any single interest category. If the new corporation behaves this way, it should be less vulnerable to antitrust challenges.” 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

[34] https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=337abfa3fa508d260738052baf46bdf9&_cview=1

[35] http://www.circleid.com/posts/20141210_breaking_us_government_funding_bill_delays_iana_transition/

[36] http://www.ntia.doc.gov/files/ntia/publications/iana_report_013015.pdf

[37] https://www.ntia.doc.gov/files/ntia/publications/ntia_second_quarterly_iana_report_05.07.15.pdf

[38] https://www.ntia.doc.gov/files/ntia/publications/ntia_iana_third_quarterly_report.pdf

[39] https://www.ntia.doc.gov/files/ntia/publications/iana_transition_report_to_congress_-_fourth_quarterly_11.02.15.pdf

[40] https://www.ntia.doc.gov/files/ntia/publications/ntia_iana_fifth_quarterly_report_to_congress.pdf

[41] https://www.ntia.doc.gov/files/ntia/publications/iana-transition-quarterly-report-05162016.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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April 21, 2016, Fairfax, Va.—Americans for Limited Government Foundation today issued a special report on the Internet Corporation for Assigned Names and Numbers (ICANN), “ICANN Do What I Want.”

ICANN is poised to take sole control over the Internet Assigned Numbers Authority (IANA) functions when its contract with the U.S. Commerce Department expires on Sept. 30, leaving ICANN as the world’s only resolver of website IP addresses and domain names.

The report asks “why the organization, despite having obtained tax-exempt status under Sec. 501(c)(3) of the Internal Revenue Code, is engaged in quite a bit of lobbying. It told the IRS it would not lobby when it filed for exempt status,” Americans for Limited Government Foundation President Nathan Mehrens wrote in a synopsis of the report.

And, “despite originally telling the IRS that its board would not be compensated other than reimbursements, ICANN has since changed course and the board is well compensated,” Mehrens added.

“If ICANN is pushing the boundaries and thumbing its nose at the Congress now, imagine how it will behave if the U.S. government oversight role is relinquished. This is not an outcome we can afford as there are no do-overs once the relinquishment occurs,” Mehrens concluded.

Attachments:

“Special Report: ICANN Do What I Want,” Americans for Limited Government Foundation, April 21, 2016 at https://getliberty.org/wp-content/uploads/2016/04/ICANN-Report-Final_04.19.16.pdf

“ICANN do what I want,” By Nathan Mehrens, President, Americans for Limited Government Foundation, April 21, 2016 at http://netrightdaily.com/2016/04/icann-do-what-i-want/

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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Commerce Dept. gives sole-source contract to Harvard to review Internet giveaway proposal that Congress defunded.

March 31, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting a $18,690 sole-source contract by the National Institute of Standards and Technology to review a Commerce Department proposal to relinquish the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN) in spite of being defunded by Congress in the omnibus spending bill from performing the transition:

“How is the Commerce Department giving out a taxpayer-funded no-bid contract to the President and Fellows of Harvard College to review the IANA functions transition that Commerce is prohibited from even performing? Congress has defunded the Internet giveaway three times, but still work continues, with Commerce Department officials traveling all over the world to junkets and conferences to prepare the proposal, which was finalized in Morocco just this month. They’ve already agreed to it. If Congress’ Article One power of the purse is so easily ignored by the executive branch without adverse recourse, Congress has little reason to exist.

“The FBO listing even erroneously claimed at first that ‘Congress has mandated the review prior to NTIA transitioning its stewardship of certain Internet technical functions to the global multistakeholder community…’ before amending it after a Senate office pointed out the error, since Congress never actually mandated any review of the transition. In fact, Congress has denied funds to engage in the transition. Thus it lacks funds to even consider the transition, let alone executing various stages of the proposal to prepare the transition.

“Imagine if Congress defunded a house from being built, and so the agency comes in, builds the foundation, builds the walls, puts on the roof and the doors and windows in, gets plumbing and other utilities all lined up, but doesn’t put the doorbell on it, and says it’s not a house. That’s where we are with the Internet giveaway, where Congress mandated that no funds be spent in the transfer, but the proposal was produced and finalized with the Commerce Department’s participation and funding anyway.”

Attachments:

“Who told NTIA it was still okay to work on Internet giveaway after Congress defunded it?” By Rick Manning, March 31, 2016 at http://netrightdaily.com/2016/03/told-ntia-still-okay-work-internet-giveaway-congress-defunded/

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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March 17, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement responding to House Energy and Commerce Committee testimony by Audrey Plonk, Director, Global Security and Internet Governance Policy, Intel Corporation, who said if the U.S. fails to give away the Internet, Congress would “incentivize other trade barriers that we see in the tech sector being raised in many countries — it will provide a rationale”:

“This is remarkable. What countries specifically are so desperate for the U.S. to cease oversight of the domain name system that they are threatening a trade war in the tech sector? Has Intel been threatened that their products will no longer be welcome in certain countries if the transition does not occur? If not, where is this coming from? The very fact that a huge multinational company expresses fear of foreign government coercion if the Internet is not given away should raise massive red flags to the type of pressure ICANN will face when it is threatened with potential foreign capture without the U.S. government to protect the First Amendment rights that underlie oversight of the current system.

“This proves that foreign coercion is already being exercised to move this transition, the exact reason not to do it.”

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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