Arguments Over Internet Governance Transition Get Even More Stupid

from the make-it-stop dept

So, yesterday, we noted that the Senate at least seemed to come (at least somewhat) to its senses in choosing not to include the ridiculous and dangerous proposal from Ted Cruz (and supported by Donald Trump) to block the transition of the IANA functions of internet governance away from the Commerce Department. I won’t go into (once again) why this is important and not a problem, or even why Cruz’s objections to it are so backwards that his plan will actually make it more likely that the “bad” result he keeps warning about will actually come to pass. You can reread the older articles on that.

However, with Democrats complaining about the Senate’s Continuing Resolution and a vote on it being pushed off, the debate over the possibility of blocking the transition is still going on. Hell, Ted Cruz even pointed to Donald Trump’s support of his plan as a reason to finally endorse Trump:

Internet freedom. Clinton supports Obama?s plan to hand over control of the Internet to an international community of stakeholders, including Russia, China, and Iran. Just this week, Trump came out strongly against that plan, and in support of free speech online.

Except, none of that is true. First, the plan does not hand over control to Russia, China and Iran — and keeping IANA under the Commerce Dept. makes it A LOT MORE LIKELY that that coalition of countries is able to grab control of the IANA functions from ICANN and the US. But, uh, even more importantly, claiming that Trump is in favor of “free speech online” is laughable. This is the candidate who has repeatedly talked about “opening up our libel laws” to go after speech he doesn’t like, has threatened to sue many publications for protected speech, and has flat out declared that we should turn off parts of the internet and anyone who responded with “freedom of speech” was “foolish.”

But, that’s still not the craziest argument I’ve heard recently concerning the transition. The award there goes to Theresa Payton, who was a top IT staffer at the White House under George W. Bush and now runs a “cybersecurity” firm. She wrote a bizarre opinion piece in The Hill that, frankly, calls into question whether she understands what ICANN even does. She tries to argue that the transition will somehow make it easier for Russia to hack our election… because [reasons].

Changing who controls the Internet Corporation for Assigned Names and Numbers (ICANN) so close to our presidential election will jeopardize the results of how you vote on Nov. 8 unless Congress stops this changeover. When the calendar hits Sept. 30, a mere 6 weeks before our election, the United States cannot be assured that if any web site is hacked, the responsible party will be held accountable. We cannot be sure if a web site is a valid. We cannot be sure if one country is being favored over another. These are all the things ICANN is responsible for and has worked perfectly since the Internet was created. Why change it now and so close to the election? Why does that matter to you as a voter?

Take a look at recent cyber activity as it relates to the election. The Democratic National Convention was breached comprising the entire party?s strategy, donor base, and indeed, national convention. Everything the DNC had done to prepare for a moment four years in the making (if not longer) was undermined by a hacker who had been in their system for some time but waited for the optimal moment to spring it on the DNC ? opening day of the convention. The FBI and other U.S. agencies, as the headlines blare, suspect Russia is responsible for the hack. Recently, Vladimir Putin went so far as to say, “Does it matter who broke in? Surely what’s important is the content of what was released to the public.?

Except, uh, ICANN has nothing to do with figuring out who hacks who. Nor is it the party that’s figuring out if one country “is being favored over another” or if a “website is valid.” That’s not ICANN’s job, and has nothing to do whatsoever with the IANA transition — which will leave the internet working exactly as it has before. Honestly, this opinion piece does nothing to call the transition into question, but does a tremendous job in calling Theresa Payton’s knowledge of technology and cybersecurity into question.

ICANN does more than just assign and/or approve your website?s domain. ICANN has its own Security and Stability Advisory Committee, which ?engages in ongoing threat assessment and risk analysis of the Internet naming and address allocation services to assess where the principal threats to stability and security lie, and advises the ICANN community accordingly.? They are equivalent to your security guard at the bank. Why change the security guard now when voter data is more vulnerable ? and prized – than ever?

If ICANN changes hands, so do the security measures taken to protect the rightful owner of your web site. If a site was hijacked today ? not an uncommon crime in the cyber world – to reassert yourself as the rightful owner, you would go through law enforcement channels, your domain provider, and yes, ICANN.

First of all, the “transition” in question isn’t about transitioning all of ICANN. Just its IANA functions, which only have a symbolic connection to the US government. Second, Payton seems to not understand what ICANN does, what the ICANN SSAC does, or how internet security works. They are not the equivalent of the “security guard at the bank.” You’d think the CEO and founder of a “cybersecurity” company would know that. And, after the IANA transition takes place, ICANN itself doesn’t “change hands” nor does it change what the SSAC does, which isn’t anything even remotely close to what Payton seems to think it does.

Don’t trust me? How about Stephen Crocker, who heads ICANN’s Board of Directors — and also helped create the damn internet. You know how much of the internet was designed through “RFCs” — “Requests for Comments” — well, Crocker invented the RFC and wrote the very first one. I think he knows what he’s talking about. And he and the head of ICANN’s SSAC, Patrik Fallstrom, have responded to Payton with a nicer version of “you have no idea what you’re talking about.”

The SSAC is not a ?security guard? for the Internet. The SSAC has no enforcement power, and the value of its advice is based on the strength of the facts underlying such advice.

The Security and Stability Advisory Committee advises the ICANN community and Board on matters relating to the security and integrity of the Internet’s naming and address allocation systems. Our recent work include advisories on a wide range of topics such as internationalized domain names, protecting domain name owners and operators, best practices for domain name registrars, analysis on the changing nature of IPv4 address semantics, and advice on matters pertaining to the correct and reliable operation of the root name system and other issues (see for more details). The SSAC neither operates as a security guard for the Internet, nor does it aspire to.

The IANA transition has no practical effect on the work and activities of the SSAC. Nor does the transition have any effect on the security and stability of website owners worldwide. The risk of compromise of a website owner does not increase as a result of the IANA transition, since ICANN and IANA do not control either the ownership of websites or the content on websites. Leading technical experts, industry associations, and civil society groups agree that allowing the IANA contract to expire is the best possible way to protect and promote the continued integrity of the Internet.

There is simply no relationship between ICANN and the current U.S. election process. Assertions of this sort are misleading and irresponsible. On the other hand, attempt to connect ICANN to the U.S. political process play directly into the hands of the enemies of an open Internet who would like to see ICANN and other Internet bodies put under the control of the United Nations or, worse yet, broken up into separate, government-controlled networks that do not interoperate smoothly around the world.

So, yeah. It seems that as we get closer to the transition, and since this issue has become “political,” we’re seeing stupider and ever more clueless attacks — but they seem to only serve to make the people behind them look worse and worse. This shouldn’t be a partisan issue. It shouldn’t be a political issue. It shouldn’t be an issue. Severing the minor link connection between IANA and the Commerce Department changes nothing practical in how the internet is governed, but takes a big weapon away from Russia and China in their quest to take control over those functions.

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Comments on “Arguments Over Internet Governance Transition Get Even More Stupid”

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Anonymous Coward says:

Re: Maybe that's what they want?

IRL, the internet is a network of networks so it’s already fragmented by definition. The smaller pieces are already easier to control as well, see the filtering systems of the UK, China, Australia, the US, et al…

Where this has gone wrong in my humble opinion, is that most filtering systems like the UK and China are regional, i.e. they only effect ISPs that are under control of the local government. The US on the other hand has used their power to seize domain ownership through court orders to various registrars, see the and seizures among the many others.

My point being, the worst offender of censorship in the world seems to be the United States, so fighting the transition is giving legitimate concerns to the international community.

Anonymous Coward says:

If you want to see a bunch of people argue over something they know nothing about,

bring up DNS and Internet numbering.

Everybody thinks because they have a name that they understand naming systems. These systems are quantitative, not qualitative. Which is to say that DNS and Internet numbering are to spoken English, what orbital mechanics is to being able to throw a baseball.

Sufficed to say, ICANN and IANA don’t build networks. Their control derives only from consent. There is nothing they do that can’t be re-engineered in parallel in other places relatively cheaply.

What we can say, is that trying to squeeze control of international (anything) by leveraging these organization will result in more fracturing, and more parallelism. And this will actually WEAKEN, the intelligence gathering capabilities of the United States.

Which is the beginning and end of the problem. If U.S. law enforcement wasn’t using ICANN and IANA as a basis for punitive action, the world wouldn’t be demanding distributed control. We did this to ourselves, and people like Cruz led the way.

1. The United States can’t control the Internet through IANA or ICANN.

2. The reason the world is pissed, is because federal law enforcement and intelligence have been dicks about IANA and ICANN.

3. Attempts to put the toothpaste back in the tube, will accelerate the problem, and do MORE damage to what little control the United States currently has.

4. Ancillary effects of these moves will result in more politically driven network management policy, which by and large has been antagonistic to Constitutional principles.

That Cruz is bent on glorifying himself by harming his own countrymen, (like both of the current candidates for POTUS) is not news.

But we should note that making a religious issue out of this in the public sphere is destructive, not only to the Internet, but to domestic law enforcement as well.

I’ve long been skeptical of the merits of a unified naming system. The Internet always has been fractured. The idea that ICANN or IANA make it less so is tenuous. While Cruz is intent on destroying them by “saving them”; to do so would likely result in accelerated adoption of strong crypto on the Internet. (again, bad for law enforcement, but good news for the 4th amendment)

Luke Abers says:

The UN really will take control of the Internet

On October 1st a critical portion of the management of the Internet, the IANA, which handles, among other things, the allocation of IP addresses (the gateway to the Internet), will fall under international control {NTIA, 2016}. Because of the involved exemption of antitrust laws, which allows for a monopoly of the involved technology and services, this critical infrastructure is required to have some form of governmental oversight to operate {Wall Street Journal, 2016}. Thus far that oversight has been conducted by the United States Government, but by ceding control of this critical component of the Internet to international control, US citizens will necessarily be monitored by an international body (likely the UN over the course of time) {Wall Street Journal, 2016}. As this strategic entity acts as the gatekeeper to the Internet, it is reasonable to assume that censorship, according to international norms, can be expected on a global scale to include the citizens of the USA.



Wall Street Journal:

Further Reading (More Technical Details):


Rod x says:

Internet Giveaway

You are a fool. Obviously you are a socialist sympathizer with these globalist totalitarians. You don’t fix what is not broken. If you understood human character, you’d understand the peril. And for what? We have kept the internet free. We emphatically distrust Obama and his puppet master, George Soros. We trust ourselves. Do you think that Obama is somehow engineering greater freedom and protection for the future of the internet, the man whose FCC appointees have consistently had to be held in check by the courts? Readers should know you are a political partisan and not an objective judge. It doesn’t take great technical knowledge to understand the issues here.

John Mayor says:


There are three Primary Sectors into which our global communities are divided! The first and most important of these is the NGO+NPO Sector (what Jeremy Rikkin calls, the Third Sector!… and the Sector, from which, the remaining two have emerged!)! The second of these, is the Business/ Commercial/ Private Sector, in which products (natural and man made!) and services (natural and man made!) are exchanged for yet other products and/ or services (and often through the man made product, known as money!)! The remaining Primary Sector, is known as the Bureaucratic Sector!… the Sector that acts as the handmaiden to persons known as politicians, who are to act as governors of this Sector!… and who, and that– in turn– govern the affairs of the respective community such serve!
The TRUE NGO+NPO Sector is neither JUST NGO, or JUST NPO!… BUT BOTH! AND MUST, IN FUTURE, BE MANDATED AS SUCH! As the Business Sector can stand up and say– rightly!– that it’s Nongovernmental! And the Bureaucratic Sector can stand up and say– rightly!– that it’s Nonprofit! And in either of these just cited two scenarios, the Third Sector then (what I’ve dubbed, the First Sector!) may be– could be!– confounded by any intimation made by either or both of these remaining Sectors, that these Sectors may be acting as if, in the stead, of the First (Third) Sector! And coupled with the added confusion of the offer of volunteered manpower, products and/ or services (including monies!) from either or both the Business and/ or Bureaucratic Sectors to the First (Third) Sector, the “strings” introduced by way of either or both of the remaining two Primary Sectors to the First (Third) Sector, would make the ability of the First (Third) Sector to operate in an autonomous fashion, nigh impossible!
The most unfortunate manifestation in regards to these three Sectors, has been the emergence of the politician!… who– in most instances!– feigns representation of the Business and First (Third) Sectors, through a (often!) collusive Bureaucratic Sector (i.e., a frequent collusion between politicians, the Bureaucratic Sector, and the Business Sector!)! And this has brought about the emergence of countless advocacies and advocates from within the First (Third) Sector, to stave off the impact of the “arrangements” which have undermined the aspirations of the “existential goals” of the First (Third) Sector (much of which, involve the negative impacts of the products and services… both natural, and man made!… created, and/ or permitted, by the Business and Bureacratic Sectors!)! And inasmuch– and in many cases!– the “existential goals” of the First (Third) Sector, are inherently diametrically opposed to that of the Business Sector!… and, sometimes– likewise!– the Bureaucratic Sector (and so!… many within the First/ Third Sector feel, that these cannot be represented by politicians!… and inasmuch– these state!– there is no basis for consensus/ compromise/ mutual agreement!)!
In summing up, a personally preferred “political design” for these three Primary Sectors, is to throw out the one-shoe-fits-all “collusive arrangement” of the conventional politician!… and to replace this, with a “Tri-Sectoral design”! Wherein/ wherewith, a “Tri-representation” would be seen in each District (at all levels!) on planet earth!
This would mean that in each District on planet earth, an NGO+NPO, Business, and Bureaucratic representative, would be voted in to represent the respective NGO+NPO, Business, and Bureaucratic Agendas, of ALL THREE Primary Sectors!… the NGO+NPO and Business Sector representatives, representing the new JOINT “political arrangement (the CRACY!… IF YOU WILL!… though, operating through SEPARATE COUNCILS!)”, and the Bureaucratic representatives representing a Bureaucratic voice– only!– as a continued handmaiden, for BOTH of the remaining two Primary Sectors! This… then!… means, an end to Political Parties!… and leadership by lone Political Figureheads! And the adoption– instead!– of Business and NGO+NPO Figureheads!… of DEMOCRATIC NGO+NPO and Business Primary Sector Council consensus!… with the TRANSPARENT Bureaucratic Sector Council’s Figurehead’s facts and statistics, at the ready!
Beyond this, would be the adoption of the prequalification for Primary Sector candidates!… of Certified Health Skills, and Law (and re the latter!… preferably, Constitutional Law!)!
And so… on the matter of the placement of the IANA!… AND YEA, ANY OF THE PRIMARY BODIES ASSOCIATED WITH THE INFRASTRUCTURE OF THE NET!… my desire, would be to see the adoption of a GLOBAL NGO+NPO Council, a GLOBAL Business Council, and a GLOBAL Bureaucratic Council! The membership in each, would be by way of the DEMOCRATIC election to each of these three unique Councils, through the ENTIRE ELIGIBLE GLOBAL NETIZEN/ CITIZEN VOTING COMMUNITY!
And then, afterupon the creation of this unique DEMOCRATIC Tri-Sectoral Council (of three Councils in one!), we would be better equipped to govern our ICT affairs– and then some!– more efficiently, and effectively! In other words, unless these THREE Primary Sectors are at THE HELM of ALL of our global products and services (natural, and man made!)… let alone, merely acknowledged!… I WOULD PREFER TO SEE NO HANDOFF OF SUCH AN IMPORTANT SET OF TECHNOMAE, TO ANY “UNSEEN” BUSINESS, NGO+NPO, OR BUREAUCRATIC INTERESTS (LET ALONE, TO ANY “POLITICAL INTERESTS”!)!… NOR, EVEN ANY EXPRESSED DEFERENCE TO SAME!
Please!… no emails!

Ninja (profile) says:

By now we should have come to expect bullshit from anyone that works with anything that uses the word cyber. She isn’t in the business of providing security to whatever system, she is in the business of saying what the Govt wants and pretending to do something to get easy tax payers money. That said, we still need to debunk their bullshit because there are still people that believe it.

getliberty (profile) says:

Outstanding legal concerns on Internet transition including antitrust warrant delay by Congress at a minimum.

This week the Senate will vote on a continuing resolution that does nothing to stop the transition of U.S. oversight of Internet’s domain name system by the National Telecommunications and Information Administration (NTIA) to the international community. However, there appear to be several key oversight considerations and spot checks that simply have not been performed by Congress yet, all seeming to advise strongly in favor of postponing the transition.

Particularly, a Sept. 21 letter by House and Senate Judiciary Committee Chairmen Bob Goodlatte and Chuck Grassley to the Department of Justice note outstanding legal concerns including the lack of adequate antitrust analysis being performed by the government’s top lawyers in the creation of a global Internet monopoly in the Internet Corporation for Assigned Names and Numbers (ICANN). This was a follow-up to their Sept. 8 joint letter with House and Senate Commerce Committee Chairmen Fred Upton and John Thune to both the Commerce and Justice Departments raising similar concerns.

The fact that there has been no reply yet to either letter particularly from the Attorney General’s Office or the Antitrust Division is unbelievable. But the fact that this has not caused House and Senate leaders—particularly House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell — to stand up publicly for their committee chairmen on a key oversight question, or to use the continuing resolution as a vehicle to delay the Internet transition, is simply inexcusable. There is too much at stake here.

The failure of Ryan and McConnell to stand up publicly on this issue represents no less than an abdication of their Article One power of the purse and oversight responsibilities. How can they ignore such high-level concerns?

These questions require the senior level attention that only Ryan and McConnell can provide, and the use of leverage that only the continuing can achieve to postpone the transition in the least so more oversight can be performed. Here is a rundown of several unanswered concerns compiled by Americans for Limited Government, particularly on outstanding antitrust questions, that in the least warrant a delay of the transition and at most advise against ever completing it.

ICANN claimed it is immune from antitrust in 2012

We noted with great interest ICANN’s response to L. Gordon Crovitz’s recent piece in the Wall Street Journal on the potential antitrust liabilities awaiting ICANN once its contract with NTIA expires at the end of the month. In its response to Crovitz, ICANN claims that “ICANN isn’t and never has been exempted from antitrust laws… No ruling in ICANN’s favor has ever cited an antitrust exemption as the rationale.”

But that could be a false comfort. In 2012, when sued ICANN on antitrust grounds, ICANN argued that being a government vendor under contract, the Internet monopoly if it existed was “thrust upon” it. Therefore, antitrust did not apply.

ICANN explicitly argued that it “obtained the sole authority to delegate TLDs and select registries through ‘its agreements with the U.S. government.’ … Put simply, ICANN did not conduct its operations to unlawfully acquire the authority to designate TLDs and select registries; thus, this authority does not support’s monopoly claim because the Sherman Act does not punish firms whose monopoly position has been ‘thrust upon’ them.”

The federal district court agreed that “ICANN’s power to control which TLDs will be accepted into the DNS and the entities that will act as registries for those TLDs was delegated to it by the United States Department of Commerce. As a result, whatever monopoly power ICANN may possess was ‘thrust upon’ it as the result of ‘historic accident’ rather than the result of ‘willful acquisition.’”

Now, even if that doesn’t fully constitute an “antitrust exemption” being granted by the court, ICANN is clearly misleading Wall Street Journal readers. When it came down to it, ICANN argued for the antitrust exemption. And after the transition, when the inevitable lawsuit comes, it will surely argue again for it.

The question we have raised, and so has Crovitz, is what happens after ICANN is let loose from the government contract? Do they get to keep their antitrust exemption? Do they wind up under the United Nations to maintain it? All we’re getting from ICANN and NTIA right now on this issue is obfuscation, but the evidence suggest a few potential outcomes here, none of them good.

If ICANN wins antitrust case in federal court, DNS will be an unaccountable monopoly, if it loses, DNS could become fractured

After the contract expires, it appears likely ICANN will simply argue again in court that because the IANA functions were “thrust upon” it by the government contract, and that it still qualifies for the antitrust exemption.

Federal courts may ultimately agree, and as a result, the global Internet monopoly will continue unabated, and no longer be subject to U.S. oversight or any U.S. constitutional protections that exist in the exercise of a government contract, unaccountable. Which may be the most dangerous outcome of all — an unregulated Internet monopoly exempt from antitrust and the Constitution’s First Amendment.

When the case comes up, and should ICANN win there may not be a way to even proceed to the merits of an antitrust case.

Or alternately, at the other end of the spectrum, say ICANN is sued and actually antitrust tears ICANN into pieces. That would mean then the transition proposal to a single entity — ICANN — planned by the multistakeholders and NTIA is very much the wrong model.

In this case, then, the future of Internet governance might not be determined by ICANN, NTIA, the multisakeholders or even Congress, but rather federal courts, hardly a desirable outcome, and not one the transition proposal has anticipated.

Either way, neither an unaccountable monopoly nor a fractured DNS would be a good outcome when everything works fine now.

Commerce, DOJ have not adequately considered antitrust implications of transfer

Adding uncertainty to the mix, it would appear neither NTIA nor the Justice Department has adequately considered any of these potential problems for the past two and a half years.
An Americans for Limited Government in a Freedom of Information Act (FOIA) request asked the NTIA for “[a]ll records relating to legal and policy analysis developed by or provided to NTIA concerning antitrust issues for the Internet Corporation for Assigned Names (ICANN) if NTIA relinquishes its responsibilities” over the domain name system.

The agency contacted us and we clarified and limited what we were looking for to simply between Jan. 1, 2014 through June 14 of this year. That covered the entire period of the transition, which was proposed publicly March 14, 2014, and the framework put forth by ICANN was approved by NTIA on June 9.

On Aug. 16 the agency responded to our FOIA request that “NTIA has conducted a thorough search for responsive records within its possession and control and found no records responsive to your request.” Nor did the agency claim any privileged exemptions under FOIA, which might have prevented such an analysis from being disclosed. Therefore, such an analysis did not exist.

Or so we thought. On Sept. 14, in a Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts hearing, suddenly NTIA administrator Lawrence Strickling in his opening statement said, “Upon the community’s completion of the plan [in March] NTIA led an intensive interagency review to ensure it met these criteria. During this review, the Department of Justice assessed whether the transition presented any competition issues and at the end, on June the 9th, we found the plan satisfied each and every one of our criteria.”

Similarly, in a question from Senator Mike Lee (R-Utah) specifically on antitrust at the hearing, who asked if the Department of Justice had been consulted on the antitrust question, Strickling replied, “During the evaluation of the transition plan, there was an interagency committee of federal agencies including the Department of Justice. As part of that process the Department of Justice looked at whether there were any competition concerns that might result from this transition and they concluded that there were none.”

NTIA needs to get its stories straight. The Wall Street Journal’s L. Gordon Crovitz did a full report on our FOIA and the lack of antitrust analysis. Why hasn’t NTIA given the Department of Justice analysis to the Journal to refute the story? And why did we only hear about this 16 days before the transition was to be complete? Why not simply post the Department of Justice analysis on the NTIA website for the world to see?

If the agency did actually perform an antitrust analysis prior to June 9, it most certainly should have been netted by our FOIA request, so why hasn’t NTIA produced it? Why did the agency say there were no responsive documents?
An obvious reason might be because the FOIA officer at NTIA simply did not find the analysis in its initial response to Americans for Limited Government. To be certain, Americans for Limited Government Foundation President Nathan Mehrens has filed another FOIA request, this time explicitly asking for the Department of Justice assessment on “competition issues” referenced in Strickling’s testimony that supposedly took place prior to June 9.

But an equally plausible reason no antitrust analysis has turned up is because no such analysis was performed. It is not lost on us how Strickling never actually said the word “antitrust” when he referred to the interagency review. There are many issues to do with competition in the domain name system market that do not necessarily invoke antitrust.

For example, if you read the actual interagency review Strickling talks about and what was specifically looked at by NTIA and the taskforce, there was no section on antitrust at all, not even a passing reference. You cannot find the word “antitrust” in the document. It is what prompted Americans for Limited Government to do the FOIA request in the first place. You can however find references to “promoting competition, consumer trust, and consumer choice in connection with any implementation of generic top-level domains (gTLDs),” for example.

But promoting competition in the implementation of new top-level domain names is not the same as performing an antitrust analysis on the potential monopoly powers ICANN will wield post-transition as the only entity in the world that bids out those domain names and collects hundreds of millions of dollars of exclusive feeds for every domain name sold in the world.

This is not the first time in this process NTIA has failed to turn over legal analysis justifying its position on the transition. The first round of FOIA requests by Americans for Limited Government for legal and policy analysis providing authority to perform the transition revealed that NTIA did not address key constitutional and legal questions prior to announcing the transition in March 2014 either.

It wasn’t until after Congress started asking questions about it that the agency began producing legal justifications for the transition. But nothing from prior to the transition’s announcement. No privileged exemptions under FOIA. The agency didn’t wonder about whether it had the authority to perform the transfer before deciding that it was going to do so.

The same thing appears to have happened here with the antitrust question. It wasn’t until Americans for Limited Government filed its FOIA request for the antitrust analysis that we heard a single peep out of NTIA to do with antitrust.

To be certain, the first document publicly available document on antitrust we’re aware of from NTIA was not posted until Aug. 16, in a Q&A purporting to answer a question about antitrust analysis, curiously the same exact day the agency responded to our FOIA. Again, in this Q&A NTIA used the same exact, carefully worded phrasing Strickling used in his testimony: “In its decision to move forward with the transition at this time, the U.S. Government did not identify any significant competitive issues relating to the proposed transition.”

But maybe the reason the agency and the Department of Justice did not identify any significant antitrust issues is because it did not look. Surely it should have. Just consider the June 1998 Clinton White Paper, which soon created the basis for ICANN’s contract with the government, explicitly considered the antitrust issue at the outset of the Internet’s birth: “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 replied, “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.”

That is, NTIA was saying that it would not provide antitrust immunity to ICANN when the time ever came it was no longer under a government contract, and that it would have to fully comply with antitrust law. Isn’t that a significant antitrust issue? And shouldn’t have ICANN’s arguments to the contrary in 2012 come to the fore in that analysis?

Surely too the agency ought to have considered the Cross Community Working Group (CCWG) on Enhancing ICANN Accountability’s March 10 document, which was addressed directly to NTIA administrator Lawrence Strickling, “IANA Stewardship Transition Proposal and Enhancing ICANN Accountability Recommendations.” In Annex 15 on stress tests, on page 470, it highlights antitrust as a potential problem, daresay, a significant competitive issue: “Stress Test #3: Litigation arising from existing public policy, e.g., antitrust suit. In response, ICANN Board would decide whether to litigate, concede, settle, etc.”

The CCWG noted the consequences of an antitrust suit could include “Significant interference with existing policies and/or policy development relating to relevant activities,” and concluded that “Existing measures are inadequate.” Yet, nothing in the NTIA approval of the transition proposal even addressed these risks.

Or perhaps NTIA might have considered the works of A. Michael Froomkin and Mark A. Lemley in 2003, “ICANN and Antitrust,” which lays out the significant antitrust issues facing ICANN. Or maybe “ICANN’s Escape from Antitrust Liability,” a 2012 article by Justin T. Lepp in the Washington Law Review. Or even Milton Mueller’s response to Americans for Limited Government President Rick Manning’s Senate testimony on May 25 where he wrote, strikingly, that “The U.S. asserted the power to control changes in the root zone to protect Network Solutions (now Verisign) from antitrust liability, not to protect ICANN from foreign governments or to protect the open Internet.”

Even the Government Accountability Office (GAO) was able to find something on antitrust in its legal review of NTIA’s authority to perform the transfer, noting that a motivation for requiring NTIA to approve changes to the domain name system’s root zone file was to avert antitrust: “Another motivation, according to the former NTIA official, was to provide Network Solutions with a defense against allegations of antitrust violations.”

Not even Thune, Grassley, Goodlatte and Upton can get an answer to these questions

All we get from NTIA now on antitrust is see no evil, hear no evil, speak no evil. They either haven’t performed the analysis or have shielded it from public disclosure. On Sept. 8, Committee Chairmen John Thune, Chuck Grassley, Bob Goodlatte and Fred Upton wrote a letter to DOJ and Commerce that noted the lack of antitrust analysis, and here we are, days before Congress will approve the transition (by not defunding it) and DOJ and Commerce have still failed to adequately respond to perhaps the most important questions facing ICANN after it is let loose. They certainly haven’t responded to that letter.

DOJ has offered to brief a Senate committee informally, but not even that has happened yet. We’re down to the wire and Congress is about to vote, but nobody knows the answers to these questions.

Until these questions are thoroughly examined, as they should have been the past two and half years, the transition must be postponed. There are simply too many pitfalls to vesting the Internet Assigned Numbers Authority (IANA) functions into a single entity wielding monopoly powers.

Lack of recourse once transition occurs, and oh, what’s the back-up plan?

The most troubling concern is the lack of remedy for the U.S. once the transition is complete on Oct. 1.
Right now, if NTIA approves changes to the root zone that result in censorship, somebody could conceivably take NTIA to federal court for a facial violation of the First Amendment. Post-transition, there will be no such remedy.
These concerns have to be raised at the senior level. In the very least, Congress should delay until at least December so we can get our next FOIA responses, DOJ can perform its briefing and more hearings and analysis of these questions can occur. Given the likely outcomes of either an unaccountable monopoly or fractured DNS, the transition is a terrible idea.

Currently, under U.S. government contract, ICANN administers the basic functionality of the domain name system, Internet protocol addresses, and the like. In March 2014, the Obama Administration announced its intent to fully relinquish those functions to ICANN, which would be the world’s only distributor of domain names.

What if something went wrong after such a transition? What if the functions were used to engage in censorship or to otherwise harm U.S. interests? What could the government do then.

That is why in the omnibus, Congress required NTIA to submit a report due January 30, 2015 “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.”
The agency’s answer? Specifically, 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.”

NTIA continued, “Nonetheless, NTIA understands the concerns of Congress in this regard and will regularly revisit this question during the planning process and when evaluating the ultimate ICANN-submitted proposal to ensure that the final plan is not deleterious to the interests of the United States and its Internet stakeholders.”

So, NTIA’s contingency plan should anything go wrong with the Internet transition after it takes place is to assure Congress that nothing will go wrong. The transition will not be deleterious to U.S. interests, the agency decrees. Don’t worry about it.

Consider that. The agency refused to submit the report it was supposed to because it disagreed with the premise of the question being asked. What if it results in global censorship? Or an Internet tax? Or worse.

Especially for members who say they want to support the transition, these are the questions that need to be asked and answered — before it’s too late. For goodness’ sake, the Obama administration couldn’t even give Congress the back-up plan it asked for — almost 2 years ago!

How can this be ready for primetime?

Defunding the Internet giveaway is not a controversial rider. It is performing Congress’ due diligence and Article One prerogatives on a question of fundamental importance to the vital Internet freedoms of each and every American. No less than the fate of the free and open Internet is at stake. What’s the rush here?

Robert Romano is the senior editor of Americans for Limited Government.

John Mayor says:

Re: Outstanding legal concerns on Internet transition including antitrust warrant delay by Congress at a minimum.

P.S.: You– no doubt!– have heard the expression, “follow the money”! But, let me add, “follow the potential criminal behavior”!
Above and beyond the immediate concerns– legit concerns!– re ANTITRUST, are the concerns about an attack on DIGITAL HUMAN RIGHTS (Constitutionally based, or otherwise!)! And I ask myself, “What is the CRIMINAL WORST-CASE SCENARIO, in the hand-off being proposed?” Who stands to gain most (CRIMINALLY!)?… and WHAT is to be gained?– in a CRIMINAL ACQUISITION? And!… let us not deceive ourselves!… CRIMINALS WOULD VERY MUCH LIKE TO MANIPULATE A PERCEIVED– YEA, SUBSTANTIVE!– “CASH COW”! But!… MORE NOTABLY!… if such a hand-off allows for UNCHECKED CRIMINAL MANIPULATION OF THE “PUBLIC’S INTEREST”!… AND BEYOND MERE DOLLARS (E.G., THE ABILITY TO ACTUALLY H-I-D-E C-R-I-M-I-N-A-L W-R-O-N-G-D-O-I-N-G B-Y W-A-Y O-F T-H-E S-U-B-V-E-R-S-I-O-N O-F S-U-C-H I-N-F-R-A-S-T-R-U-C-T-U-R-E!… AND BEYOND MERE P-O-L-I-T-I-C-A-L A-D-V-A-N-T-A-G-E!), THEN EVERY EFFORT SHOULD BE MADE TO OBSERVE THIS TRANSITION, THROUGH A F-O-R-E-N-S-I-C L-E-N-S! And it’s unclear to me– at least!– just how “equipped” our sundry “SECURITY INTERESTS” are, in anticipating the potential implications of this handover! And I reiterate your expressed point!… What’s the rush? Better still!… Who’s doing the rushing?… and why?
Please!… no emails!

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