US lawmakers make last-ditch bid to block internet governance transfer

The current U.S. contract with ICANN is set to expire by the end of this month

Republican lawmakers are making a last-ditch bid to thwart the proposed transfer by the U.S. of internet governance to a multistakeholder body, by calling on the government to reconsider its plans to put the transition into effect by month end.

Raising fears that control of the internet could pass to authoritarian regimes, the legislators wrote in a letter Thursday to Attorney General Loretta E. Lynch and Secretary of Commerce Penny Pritzker that there were unresolved issues, such as the ability to ensure that the Internet Corporation for Assigned Names and Numbers would in fact follow its own bylaws after the transfer.

ICANN, under contract with the Department of Commerce, operates the Internet Assigned Numbers Authority (IANA) functions, which include responsibility for the coordination of the DNS (Domain Name System) root, IP addressing, and other internet protocol resources.

The National Telecommunications and Information Administration (NTIA), an agency within the Commerce Department, said last month it will go ahead with its plan to transfer supervision of the IANA functions to a multistakeholder body on Oct. 1, in line with a plan first announced in March 2014.

ICANN set up Public Technical Identifiers, a nonprofit public benefit corporation incorporated in California, to eventually run the IANA functions under contract from ICANN after the transition.

There is no restriction in the bylaws that could prevent ICANN itself from shifting its legal jurisdiction of incorporation from California to countries abroad, U.S. Senate Commerce, Science, and Transportation Committee Chairman John Thune, Senate Committee on the Judiciary Chairman Chuck Grassley, House Energy and Commerce Committee Chairman Fred Upton, and House Judiciary Committee Chairman Bob Goodlatte wrote.

The lawmakers said there is still no legal certainty about whether the termination of the IANA functions contract would amount to relinquishment of U.S. government property, despite a request in 2015 to the Government Accountability Office to do an audit report on the issue. Relinquishment of government property would require approval from Congress, the legislators wrote.

In the Senate, Ted Cruz, a Republican senator from Texas, on Thursday urged Congress to stop the proposed “giveaway” of internet control by the administration of President Barack Obama, warning of the risks of increasing the influence of countries like Russia, China, and Iran over the Internet.

Calling on Congress to act, Cruz said “unscrambling those eggs may well not be possible,” and warned that the Obama administration was planning to push through the transfer of internet control ahead of presidential elections, so that a new president will not be able to undo it.

A bill proposed in the Senate by Cruz, called the Protecting Internet Freedom Act, would prohibit any transfer of internet DNS functions unless expressly allowed under a federal statute passed after the new legislation has been enacted. Cruz also wants the government to certify to Congress that the U.S. has secured sole ownership of the .gov and .mil top-level domains and a contract for the exclusive control and use of the domains in perpetuity.

“Congress should stand united to rein in this president, to protect the constitutional authority expressly given to Congress to control disposition of property of the United States,” Cruz said indicating another prong of attack by the Republican legislators on the transition issue.

NTIA said recently that it and ICANN have formally affirmed that the U.S. government is the administrator of .mil and .gov and any changes made to the top-level domains can only be made with the express written approval of the U.S.

Congress has not received assurances from the Obama administration that the U.S. government will continue to have exclusive ownership and control of the .gov and .mil top-level domains in perpetuity, which are vital to national security, and are used by key U.S. agencies including defense, Cruz said.

The government appears to have kept its options open with a lot being read into a letter of Aug. 31 to ICANN from the Department of Commerce in which it states that it is serving preliminary notice of its option to extend the contract with the internet body.

An extension of the contract requires a written notice to ICANN within 15 calendar days before the expiry date of the contract, if the preliminary notice was served 30 days ahead of the date of termination. ICANN has said the letter indicates that it is still NTIA’s intent to continue with the transfer on Oct. 1, barring a significant impediment such as a legal or legislative obstacle.

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