Groups Say Transitioning Internet-Naming Agency Would Break Law

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Twenty-five advocacy groups want the Commerce Department to hold off on plans to cede its control over the body that governs internet domain names. But the United States shows no signs of halting plans to end its leadership of the body by the end of next month.

The groups argue that riders on spending bills in Congress prohibit the internet naming transition from moving forward. If the Obama administration moves forward with its plan to relinquish control, the groups say Congress should sue.

“We agree that internet governance should work from the bottom up, driven by the global community of private sector, civil society, and technical stakeholders,” said a Wednesday letter, with signatures coming from groups like TechFreedom, Heritage Action for America and Taxpayers Protection Alliance. “Without robust safeguards, internet governance could fall under the sway of governments hostile to freedoms protected by the First Amendment.”

The National Telecommunications and Information Administration has held a contract for 18 years to run the Internet Assigned Numbers Authority, the body that oversees the domain names used by internet service providers. IANA is a department within the global nonprofit group that broadly governs the internet: the Internet Corporation for Assigned Names and Numbers.

“Ominously, governments will gain a formal voting role in ICANN for the first time when the new bylaws are implemented,” the groups said in the letter. “ICANN’s new governance structure may prove inadequate, or the community too disunited, to hold the ICANN staff or board accountable,” the groups added, adding that the multi-stakeholder approach is “fragile.”

Two years ago, NTIA began a process to relinquish control of IANA to a global, multi-stakeholder body. The agency argues that in the internet community, no one nation or power should have excessive control over the functions powering the internet. NTIA’s contract with IANA expires on Sept. 30.

In June, NTIA Administrator Lawrence Strickling said the current plan to transition IANA to the new privatized body meets the agency’s criteria, adding that it “will strengthen the multi-stakeholder approach that has helped the internet to grow and thrive, while maintaining the stability, security, and openness that users across the globe depend on today.”

Groups opposed to the transition are concerned about the structure of the new IANA board and the influence that adversaries with weaker laws protecting internet freedom could impose. They also say the U.S. government “failed to ensure U.S. ownership and control of .MIL and .GOV in perpetuity.”

They further note that Congress twice passed riders in appropriations bills to block funds toward transitioning IANA’s functions away from U.S. control.

Most recently, an appropriations bill signed into law in December said none of the funds from the measure could be used to “relinquish responsibility” of NTIA “with respect to internet domain name system functions” during fiscal year 2016. The provision specifically mentions IANA’s functions.

“The administration appears determined to violate clear appropriations prohibiting the transition of the internet domain name system without authorization,” the groups wrote in their letter. “If the administration does not relent, Congress should sue.”

NTIA says it has done nothing wrong. A spokeswoman said the agency has complied with the law that stipulates it can’t use funds to relinquish control over IANA’s functions.

“NTIA has followed the law related to the IANA stewardship transition,” the spokeswoman told Morning Consult in an email. “However, the law does not prohibit NTIA from evaluating a transition proposal or engaging in other preparatory activities related to the transition. In fact, Congress directed NTIA to conduct a thorough review of any proposed transition plan we receive and to provide Congress with quarterly updates on the transition, which we have done.”

Berin Szóka, TechFreedom’s president, said in statement Thursday that Congress “must defend the Constitution’s separation of powers, which gives the ‘Power of the Purse’ to the House as the most democratically accountable part of the federal government.”

“That means making clear to the administration that the House will sue if NTIA does not extend the contract,” he added.

Steve DelBianco, executive director at NetChoice who was directly involved in the negotiations that crafted the transition plan, is skeptical that appropriations riders could stop the transition.

“My sense is that NTIA would not need to spend any funds in simply allowing the IANA contract to expire, in which case an appropriations rider would not block the transition,” DelBianco said in an email to Morning Consult.

Rep. Anna Eshoo, the top Democrat on the House Energy and Commerce Communications and Technology Subcommittee, criticized the use of riders to delay the transition of internet governance.

“Congressional oversight of the IANA transition is critically important, but attempting to unreasonably delay the transition through the appropriations process is not productive,” Eshoo said in an emailed statement to Morning Consult.

“While we’re still awaiting more information from ICANN, I remain optimistic that there can be a successful transition to the multi-stakeholder community that preserves the principles that have allowed the Internet to flourish,” she added.

Eshoo represents California’s 18th district, which includes parts of Silicon Valley.

Republicans have criticized the use of federal funds going toward the transition. Sen. Ted Cruz (Texas) joined Republican Sens. James Lankford (Okla.) and Mike Lee (Utah) and Rep. Sean Duffy (Wis.) in writing a letter to NTIA’s Strickland in June alleging the government’s plan to cede control of IANA broke the law by violating appropriations riders. The four lawmakers support legislation that would bar the U.S. from moving forward with its transition plan.

Cruz called the transition proposal an “extraordinary threat” to Americans’ freedom. He also said the plan “will empower countries like Russia, like China, like Iran to censor speech on the internet.”

The Republican Party’s 2016 platform says the IANA transition proposal is throwing the “internet to the wolves.” The platform says Russia, China, Iran and others “are ready to devour it.”

Experts involved in the talks have pushed back on that argument, saying that delaying the transition would actually be more dangerous than letting it go through.

“It will signal very, very clearly that the United States has changed its position, that the United States no longer believes firmly in the multi-stakeholder, private sector-led internet,” said David Gross, who has worked on the transition, said at a Senate hearing in May. He was at the State Department during the George W. Bush administration.

NTIA published a report in June that said the plan to transition IANA away from U.S. control “maintains the openness of the internet” and “does not replace NTIA’s role with a government-led or intergovernmental organization solution.”

TechFreedom’s Szóka emphasized that his group supports the “multi-stakeholder model of internet governance.” But, he added, “that’s precisely why the transition shouldn’t be rushed.”