The following blog post was co-authored by R Street Senior Technology Policy Program Director Zach Graves.
Is Obama giving away the internet? According to some conservatives, like Sen. Ted Cruz, R-Texas, that’s what’s going to happen when the U.S. Department of Commerce’s contract with the nonprofit Internet Corporation for Assigned Names and Numbers (ICANN) expires Oct. 1 and the National Telecommunications and Infrastructure Administration’s (NTIA) transition plan goes into effect.
Indeed, when that happens, the U.S. government will give up the last vestiges of its formal legal authority over the administration of the Internet Assigned Numbers Authority (IANA) functions and the authoritative root zone file will be transitioned to a global multistakeholder model. This gets the internet’s Domain Name System functions away from unilateral control of the U.S. government.
Well, according to Sen. Cruz, this transition amounts to “a radical proposal to give away control of the internet to foreign countries” which would make it so “Russia, China and Iran could be able to censor speech on the internet.”
Just this week, four Republican committee chairmen declared in a letter to Attorney General Loretta Lynch and Commerce Secretary Penny Pritzker that “the transition of the IANA functions to the global multi-stakeholder community is a serious, groundbreaking and potentially unalterable action.”
A number of conservative groups – including TechFreedom, Heritage, Americans for Tax Reform and the Competitive Enterprise Institute – have also raised concerns about allowing the transition to move forward as planned. While Sen. Cruz is opposed to the transition entirely, the most prominent and engaged among these groups ultimately believe the transition should go forward after some specific concerns are addressed (you can hear them out by watching the panel discussion R Street hosted on the subject back in July).
That subtlety is lost on the authors of this letter, including Herman Cain, Ed Meese, Mike Needham and a variety of other prominent conservatives who oppose the transition entirely, insisting that “[p]erhaps none of Mr. Obama’s actions during his two terms will do as irreparable damage to our national security” as the ICANN transition.
Current outlook for the transition
While the current transition plan does not require congressional approval, Sen. Cruz has introduced legislation (S.3034) that would prohibit it from moving forward without explicit authorization from Congress. A companion bill (H.R. 5418) was introduced in the House by Rep. Sean Duffy, R-Wis.
Both bills initially met with lackluster support, but have picked up more cosponsors in recent weeks (although no Democrats have endorsed either bill). Nonetheless, even if these bills passed a floor vote at the 11th hour, the chances of being signed by President Barack Obama are pretty much zero.
Another potential way to halt the transition would be for Congress to sue NTIA if it does not extend its contract with IANA. According to TechFreedom, there’s a strong case for this option, since previous appropriations riders prohibited NTIA from using taxpayer funds to plan the transition. NTIA disputes this, so it would be up to a court to resolve. To proceed with a lawsuit, the House of Representatives would vote on a simple resolution (like this one) to authorize Speaker Paul Ryan, R-Wis., to sue on its behalf.
The nonpartisan Government Accountability Office, in a Sept. 12 report to Congress, offered the legal opinion that “NTIA could use unobligated balances appropriated by the 2016 Appropriation to relinquish these responsibilities.” A companion letter from GAO noted that, while this would be “a case of first impression” with no clear precedent, “it is unlikely that NTIA’s planned actions would violate the Constitution.”
Incidentally, the fiscal year of the federal government also runs until Sept. 30, at which point new legislation must be passed for it to continue to operate. Opponents of the transition could take advantage of this. According to Senate Commerce Committee Chairman John Thune, R-S.D., Senate Republicans are currently “discussing options” to attach riders to delay the transition in the coming appropriations bill. If there is a delay, this seems like the most likely avenue.
Even if most conservatives don’t want to prevent the transition entirely, they must have some very strong objections to attempt to derail it this late in the process, which has been in the works since 1998.
Arguments against the transition proceeding as planned
Here are their main concerns:
- Legality of the transition
If IANA functions themselves are upheld in court as government property, Congress may be required by law to authorize their disposal. TechFreedom argues that because NTIA did not get congressional approval, the transition could violate the law and this may necessitate reversing the transition after the fact, which would cause geopolitical blowback. Of course, Congress could simply pass a bill to authorize the transition if they’re worried about that.
In a white paper released last week, Berin Szoka of TechFreedom and Paul Rosenzweig and Brett Schaefer of the Heritage Foundation highlight two other legal concerns. ICANN bylaws may not be compliant with California law. Also, NTIA may have violated administrative law by letting ICANN review public comments on its behalf. Additionally, as discussed above, they argue NTIA violated congressional directives not to fund the transition, although NTIA disputes this.
- Foreign control of the global internet
According to the Heritage Foundation, relinquishing control of IANA functions will jeopardize free expression and hurt economic growth. In the current proposal, there are not enough safeguards in place to ensure that ICANN remains free of control by authoritarian governments and remains accountable to businesses and internet users. In his Senate testimony, Heritage’s Brett Schaefer argues that “[t]he transition to a multi-stakeholder global system is too important to get wrong and too important to rush,” expressing concern that the current proposal gives too much additional power to governments through the Government Advisory Committee (GAC).
- Accountability and transparency
Some, including Sen. Thune, cite concerns about ICANN’s accountability and transparency. They doubt that the multistakeholder community can serve as an adequate check on the ICANN board. If not properly reformed, ICANN can be compelled to tax and regulate the use of domain names. Kristian Stout, associate director for innovation policy at the International Center for Law and Economics (ICLE), advocated for insertion of a “clawback provision” that would allow NTIA to revise its decision. ICLE also advocated for use of strong due-process controls. Similarly, Heritage’s Brett Schaeffer called for a “soft extension” of the NTIA contract “that allows ICANN two years to demonstrate that the new procedures it is putting in place actually work.”
- Securing .MIL and .GOV
Cruz’s bill expresses concern over the continued management of the .MIL and .GOV top-level domains. He argues these domains are a national security asset and the sole property of the U.S. government, and should thus remain in its control in perpetuity. He compared giving up authority over IANA to giving up the Panama Canal after funding its construction.
ICANN agreed in June 2016 to not redelegate .MIL and .GOV without first obtaining written approval from NTIA. According to NTIA,
The operation of and responsibility for .mil and .gov are not impacted by this transition as they are not part of the IANA functions contract or related root zone management responsibilities. Further, per the policies, procedures and practices in place, .mil and .gov cannot be transferred without explicit agreement first from the current administrators of those domains – namely, the U.S. government.
However, Cruz argues that this agreement should be backed by a legally binding contract to ensure U.S. ownership indefinitely.
- Antitrust vulnerability
TechFreedom further argues that if the issue of antitrust liability is not addressed, the multistakeholder model could implode. Because ICANN and VeriSign, which administers IANA, are both government contractors, they are shielded from antitrust liability. Foreign countries can use their antitrust laws to label ICANN a cartel, bolstering their argument for multilateral control. They argue that transferring the internet’s Domain Name System to an international arena could push IANA functionality into the jurisdiction of the International Telecommunications Union (ITU) or another state-centric U.N. organ vulnerable to the influence of oppressive regimes. VeriSign issued a letter responding to this theory, and TechFreedom responded here. To address this concern, Congress could also give ICANN an antitrust exemption.
- Mission creep
Skeptics of the transition have expressed concern that, once outside of U.S. oversight, ICANN will be more likely to experience mission creep. Shane Tews, a visiting fellow at the American Enterprise Institute, highlighted the importance of separating technical functions and politics: “ICANN is not set up to be a global arbitrator of trade agreements or human rights principles.” An ICANN working group report details ICANN’s corporate and social responsibility to respect human rights. However, ICANN’s mission statement and core values do not include a provision on human rights. Its mission is to coordinate certain technical functions.
A recent letter to Congress from the Intellectual Property Owners Association also signaled skepticism of the transition, and declared that “a crucial responsibility of [ICANN] is developing and enforcing policies to protect intellectual property rights.” However, the R Street Institute’s Mike Godwin has argued that ICANN should not be the arbiter or enforcer of intellectual-property issues such as copyright and trademark, another area of possible mission creep. Allen R. Grogan, chief contract compliance officer for ICANN, foresaw overreach problems if the 2013 Registrar Accreditation Agreement was interpreted to allow it to police illegal activity on the internet:
A blanket rule requiring suspension of any domain name alleged to be involved in illegal activity goes beyond ICANN‘s remit and would inevitably put ICANN in the position of interpreting and enforcing laws regulating website content. At worst, it would put ICANN squarely in the position of censoring, or requiring others to censor, internet content.
Countries have different laws limiting content on the grounds of hate speech, religious defamation, nudity and political speech. Grogan argued that the responsibility to govern content must remain with law enforcement, regulators, prosecutors and courts.
Arguments that the transition should proceed as planned
Notably, not one stakeholder formally objected in delivering the transition plan to NTIA in March, according to testimony by Steve DelBianco of NetChoice. Human-rights groups, trade organizations representing Internet companies and national-security experts – such as former Homeland Security Secretary Michael Chertoff – all have signed off on the transition. NetChoice, The Internet Association, the Computer and Communications Industry Association, the Software and Information Industry Association and the Internet Infrastructure Coalition issued a joint statement supporting the Oct. 1 transition. Civil-society groups – including the Center for Democracy & Technology, Access Now, Public Knowledge and New America’s Open Technology Institute – have also expressed their support.
Proponents of the transition have forwarded various arguments in favor of allowing it to proceed as planned. These include:
- U.S. oversight has hurt internet freedom
Milton Mueller, a professor at Georgia Tech, argues that U.S. government oversight of ICANN “has never been used to protect internet freedom, but has been used multiple times to limit or attack it.” In 1997, the U.S. Commerce Department rejected calls from public interest groups to include free-expression protections in its charter. Mueller explains how the U.S. Commerce Department intervened to pressure ICANN’s CEO to reverse a decision authorizing the creation of the .XXX domain. An Independent Review Process by ICANN stakeholders upheld the domain’s creation. The U.S. Commerce Department also used its authority over ICANN to argue against bounding the Governmental Advisory Committee’s veto power for top-level domains, such as .HUMANRIGHTS or .LIBERTY. Lastly, ICANN served as a vehicle for the extension of trademark policies to limit the use of domain names.
- The United States doesn’t own the internet
In his March 2016 testimony at a House Energy and Commerce hearing on the privatization of the IANA authority, Steve DelBianco stated:
In the 1980s, American engineers came up with a recipe for internet protocol and they gave that recipe to the world so that internet engineers anywhere on the planet could construct a network using that recipe and connect to other networks. The U.S. doesn’t own the internet anymore than Ireland owns the recipe for Irish stew.
- IANA functions aren’t as important as people say they are
Eli Dourado, director of the Technology Policy Program at the Mercatus Center, believes IANA functions are oversold and that IANA will matter less over time. The existing Domain Name System is not the only way to structure internet browsing; there are content-based addressing alternatives and potential blockchain applications. Also, companies and individuals can protect themselves against root-zone file meddling with backups and caching.
- Stopping the transition would have diplomatic fallout
Dourado argues the IANA transition is “smart diplomacy.” Its failure would give more ammo to authoritarian regimes to criticize U.S. oversight of internet governance. Delaying the transition signals to foreign governments that we are not trustworthy or sincere. Indeed, as Milton Mueller writes:
[T]he decision to end U.S. control was linked to a comprehensive accountability reform plan. Those reforms, which took two years to design, have already been approved, and have widespread support. They were based on an elaborate public process involving multiple congressional hearings, thousands of people in hundreds of organizations and businesses, and a global consensus among the directly affected stakeholders. The U.S. has determined that the proposal generated by the internet community meets its clearly stated criteria. If the U.S. reneges now, it would destroy its own credibility and throw the whole nongovernmental model upon which the ICANN regime is based into chaos and uncertainty.
Moreover, it diminishes U.S. credibility among governments who are not yet committed to the multistakeholder model, and lends credibility to efforts pushing a dangerous multilateral approach to DNS management through entities such as the United Nations or ITU. Therefore, as Mueller puts it, halting the transition would “play right into the hands of authoritarian states.”
- ICANN’s accountability and transparency measures are good enough
ICANN will continue to be a California nonprofit operating under U.S. law. Most ICANN meetings are open to public attendance, recorded and archived online. Also, the transition plan introduces an accountability entity of 29 members known as the “empowered community,” which can reject proposals to ICANN budgets and bylaws.
Matthew Shears, director of the Global Internet Policy and Human Rights Project at the Center for Democracy and Technology, described the “ultimate sanction” available to the community. If ICANN does not meet its agreed performance targets, the community can change the IANA functions operator and effectively seek an alternative to ICANN.
In her testimony at the same hearing, Alisa Cooper, engineer and chair of a stakeholder group, mentions several features of the multistakeholder model that defend against capture from governments and special interests. These include open public processes, open transparent public proceedings for all decisions, consensus-based decision making that never defaults to voting or campaigning, established appeals processes and the ability to recall or replace underperforming members of the leadership. “From an operational perspective the plan incurs minimum change while enhancing community oversight over IANA providing the perfect recipe for stability and security,” she said.
ICANN is far from perfect. It should be more transparent; have more accountability mechanisms; limit mission creep in areas such as intellectual-property enforcement, law enforcement and human rights; and include better safeguards on free speech. However, obstructing the transition for the reasons covered above may make the perfect the enemy of the good – where “good” is about as close as one gets in multistakeholder negotiations.
As was the case with the previous transition to ICANN’s stewardship in 1999, internet users will likely not even notice a transition occurred. In reality, the IANA functions don’t matter nearly as much as some nontechnical conservative activists seem to believe. Legitimate experts who express skepticism of the current plan are not arguing over whether to transition IANA, but about when and how to perform the transition.
ICANN does not have exclusive technical control over the internet. Accepting their domain name registry system has always been a voluntary arrangement. At worst, the multistakeholder model decays and an entity (or multiple entities) other than ICANN pursues an alternative to the current DNS.
The best case scenario is that they would be replaced with a system more resistant to government tampering, like blockchain-based domain servers built on top of the Ethereum or bitcoin networks. What’s more likely, however, is a further balkanization of the internet with increased control by authoritarian regimes and special interests.
Continued unilateral U.S. oversight of ICANN, as well as the breach of trust in failing to follow through with the transition plan, would give advocates of multilateralism ammunition to push for greater state control, which are the very things Sen. Cruz and company say they fear most.
Some conservatives claim Obama is “giving away the internet.” In reality, the internet isn’t ours to give away. If Congress blocks the transition, it will only make it more likely that the internet will be hijacked by authoritarian governments and special interests.
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