Congress
defunds Internet giveaway, advocates urge executive action by Robert Romano
No sooner had
the omnibus bill’s language been dropped, including language defunding the
Internet giveaway, than advocates were urging the National Information and
Telecommunications Administration (NTIA) to simply ignore the clear
prohibition, originally authored by Rep. Sean Duffy (R-Wisc.).
To
the uninitiated, the omnibus bill states in section 540: “None of the funds made available by this Act may be used
to relinquish the responsibility of the National Telecommunications and
Information Administration during fiscal year 2015 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.”
Paul Rosenzweig,
visiting fellow at the Heritage Foundation and supporter of the transition,
thinks this means almost nothing. In Rosenzweig’s view, the way the Obama
administration intends to proceed, writing
on his Lawfare blog, is “to relinquish control …
through a decision to simply not renew that contract when it expires in
September 2015 (thereby leaving ICANN with the authority to manage the IANA
function on its own).”
He advises NTIA
that “the language prohibits the NTIA from spending funds to carry out the
transition… [and] since the act of not signing a contract (which is what NTIA
proposes to do) costs nothing, there can be no funding prohibition that effectively
prevents NTIA from declining to renew the contract.”
Cute. The Obama
administration, with Heritage’s Rosenzweig as a cheerleader, propose to simply
not sign a new contract and let the old contractor, in this case the Internet
Corporation for Assigned Names and Numbers (ICANN), walk away with the asset.
It’s absurd. ICANN would be stealing.
Without
authorization from Congress, this is international theft of the keys to the
Internet.
Never mind that
the language is quite similar to how Congress defunded the National Science
Foundation, the previous government entity that administered the IANA functions
and the domain name system, in
a 1998 rider to the Foundation’s appropriations: “That none of the funds appropriated or otherwise made
available to the National Science Foundation in this or any prior Act may be
obligated or expended by the National Science Foundation to enter into or
extend a grant, contract, or cooperative agreement for the support of
administering the domain name and numbering system of the Internet after
September 30, 1998.”
It was that act
that preceded the Commerce Department stepping in and then requesting bids on a
contract to administer the IANA functions that was eventually awarded to ICANN.
Like the omnibus language, it defunded the Foundation from “enter[ing] into or
extend[ing] a grant, contract, or cooperative agreement.”
And since
relinquishing responsibility is in fact an action being taken by the agency — which
announced March 14 its “intent to
transition key Internet domain name functions to the global multistakeholder
community” — and it must be performed by salaried personnel like Assistant
Commerce Secretary Lawrence Strickling, it would cost government funds to
perform it.
Therefore,
Strickling is prohibited from agreeing to any transition, or using any agency
resources including his salary, to perform it. It’s illegal now. Congress
passed and Obama signed the bill into law.
Besides,
Article IV of the Constitution states “Congress shall have power to dispose of
… property belonging to the United States,” and the
Commerce Department contract with ICANN says the IANA is government property: “All deliverables under this contract become the property
of the U.S. Government.”
That means it
would take an active vote in Congress to authorize the transition, an objection
the administration has not yet answered.
Americans for
Limited Government was so skeptical of the Commerce Department’s legal
authority to engage in the transfer, we filed a
Freedom of Information Act request for
“All records relating to legal and policy analysis developed by or provided to
the National Telecommunications and Information Administration (NTIA) 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.”
The
agency’s interim response has not
produced any legal analysis supporting the transition, nor have they claimed
any privileged exemptions under FOIA, meaning such an analysis might not even
exist.
In the
meantime, Rosenzweig is concerned Congress and Obama might be sacrificing the
“good will” of the world expecting the Internet governance transition to occur:
“[If] the NTIA
reads this language as compelling renewal of the contract and preventing
the transition altogether, then this will send the wrong message to the rest of
the world, many of whom doubt the bona fides of American stewardship of the
network. The United States achieved a
fairly successful result at NetMundial in Brazil — at least in part because the proposed IANA
transition created good will. This points in the opposite direction.”
Why should
anyone should care if the rest of the world doubts the integrity of Commerce
Department oversight of the Internet Assigned Numbers Authority (IANA)
functions?
If that’s the
direction NTIA goes, it would be another egregious executive action in defiance
of clear congressional directive not to do the transfer, a law which Obama has
now signed. The heart of Rosenzweig’s argument is that NTIA can just ignore the
clear will of Congress, and the separation of powers. That the law need not be
followed.
An extremely
dangerous position — advocating and accepting executive action by the
administration against Congressional will — for the well-respected Heritage
Foundation to embrace.
Robert Romano
is the senior editor of Americans for Limited Government. Read more at NetRightDaily.com: http://netrightdaily.com/2014/12/congress-defunds-internet-giveaway-advocates-urge-executive-action/#ixzz3LztfWcGR
Source: http://netrightdaily.com/2014/12/congress-defunds-internet-giveaway-advocates-urge-executive-action/
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