international control of the internet

One of the enduring mysteries of the Obama Administration may be probed in an upcoming Senate hearing. For reasons that have never been adequately explained, the President decided to end U.S. oversight of key internet functions and replace it with a multinational organization influenced in part by countries that engage in censorship.

A key battle in this most significant free speech fight in decades will take place on September 14, as the Senate Subcommittee on “Oversight Agency Action, Federal Rights and Federal Courts” convenes a hearing on the potential watershed moment.

According to a release by Subcommittee Chair Ted Cruz, “The hearing will investigate the possible dangers of the Obama administration’s proposal to relinquish oversight of the Internet to the Internet Corporation for Assigned Names and Numbers (ICANN), scheduled to take place on October 1. ICANN is a global organization consisting of 162 countries, including authoritarian regimes such as China, Russia, and Iran, which do not have a First Amendment right to free speech.”

The hearing, entitled “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet” is designed to investigate the possible dangers of the Obama administration’s proposal to relinquish oversight of the Internet to the Internet Corporation for Assigned Names and Numbers (ICANN), scheduled to take place on October 1. ICANN is a global organization consisting of 162 countries, including authoritarian regimes such as China, Russia, and Iran, which do not have a First Amendment right to free speech.

Cruz, along with Rep. Sean Duffy (R-Wis.) introduced the Protecting Internet Freedom Act in June, which seeks to prevent the Obama administration from relinquishing oversight of critical Internet functions and protect national security by ensuring that the United States maintains sole ownership of key functions. The Texas Senator recently unveiled a “countdown clock” site to promote awareness of the September 30 deadline for Congress to take action to stop the administration’s transition.

The Administration seeks to make its move final by October 1. There has been no explanation from the White House about the significance of that date, just as there has been no explanation for the reasons for the move at all.

Opponents are engaging in urgent attempts to stop the move. A website outlines their concerns: “The Obama administration is pushing through a radical proposal to take control of Internet domains …If that proposal goes through, countries like Russia, China, and Iran could be able to censor speech on the Internet, including here in the U.S. by blocking access to sites they don’t like. Right now, the Obama administration’s proposal to give away the Internet is an extraordinary threat to our freedom and it’s one that many Americans don’t know anything about.”
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Critics of the President’s move note that the White House lacks the funding authority to make the transition. Politico reports that Senator John Thune (R-S.D.), chair of the Commerce Committee, will seek to delay Obama’s internet plans through the upcoming continuing budget resolution.

As noted in a Washington Examiner interview, “Congress has passed legislation to prohibit the federal government from using tax dollars to allow the transition, and pointed out that the feds are constitutionally prohibited from transferring federal property without approval from Congress.”

Numerous organizations advocating free speech and adherence to Constitutional restrictions on presidential spending actions have signed off on a letter to Congressional leaders urging opposition to Obama’s action:

“We write to urge Congress to defend its Power of the Purse—and Internet freedom.

“Our Constitution rests on the idea that the “Power of the Purse” belongs to Congress, not the President … the Administration appears determined to violate clear appropriations prohibiting the transition of the Internet domain system without authorization. If the Administration does not relent, Congress should sue. Congress twice enacted appropriations riders prohibiting any use of taxpayer funds “to relinquish the responsibility of the National Telecommunications and Information Administration [NTIA… This ‘Transition’ would end the U.S. government’s historic role as a guarantor of Internet governance.”

“…Members of both parties should be able to unite around defending the Power of the Purse, the most fundamental Constitutional power of the American People’s elected representatives. If enacted legislation is no longer considered binding, a fundamental check on Executive power will have been lost. Legislators also have a solemn responsibility to future generations to ensure that the future of the Internet is not placed at risk by prematurely ending U.S. oversight…”

President Obama continues to move forward with his controversial plan to transfer control of Internet domain name functions to an international agency, a move encouraged by Russia and China. Clearly, those nations have radically different views of free speech rights than those held by Americans.

Congress has objected, but the White House maintains that the contentious action can be done through executive action. That leaves lawmakers with the challenge of attempting to find a legal means to halt Mr. Obama’s plan.

A coalition of representatives and senators believe they may have found a viable approach. Questioning the constitutionality of the President’s plan, Senate Judiciary Committee Chairman Chuck Grassley, House Judiciary Committee Chairman Bob Goodlatte, Senator Ted Cruz and Representative Darrell Issa are questioning whether the plan would result in the transfer of government property, which could violate Article IV, Section 3 of the Constitution.

At issue are key components of the Internet’s infrastructure, collectively known as the Internet Assigned Numbers Authority (IANA) functions, which enable the efficient operation of the Internet. Included is the management of the root zone file, which was developed by taxpayer-funded Department of Defense researchers, and which remains designated as a “national IT asset” by the U.S. government. Article IV, Section 3 of the Constitution grants Congress the sole authority to transfer government property. If this file—or other government-developed components of the Internet—are determined to be the property of the government, then transferring their control to a nongovernmental entity without congressional consent, as the Department of Commerce has proposed, may violate the Constitution.

The Commerce Department’s contracts with the organizations that administer Internet name and address system policies explicitly state that the root zone file is “the property of the U.S. government,” and changes cannot be made to the file without government approval. Congress has also passed legislation blocking federal funding for efforts to relinquish stewardship of the domain name system, including the root zone file.

To ensure that Congress is informed of any government property that may be transferred without its approval, the lawmakers asked GAO to study the government property implications of the Department of Commerce’s proposal. They also asked GAO to determine whether the agency has the legal authority to conduct such a transfer to a nongovernmental entity without congressional approval.

–Text of the letter–

September 22, 2015

Mr. Gene Dodaro
Comptroller General
U.S. Government Accountability Office
441 G Street, N.W.
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Dear Mr. Dodaro:

On March 14, 2014, the National Telecommunications and Information Administration (“NTIA”) announced its intent to relinquish oversight of Internet domain name functions to the “global stakeholder community.” This proposed transition raises questions about NTIA’s authority to transfer possession and control of critical components of the Internet’s infrastructure to a third party.

The Internet as we know it has evolved from a network infrastructure first created by Department of Defense researchers. One key component of that infrastructure is the root zone file, which the federal government currently designates as a “national IT asset.”[1] Creation of the root zone file was funded by the American taxpayer and coordinated by the Department of Defense, and the file has remained under United States control ever since.

Under Article IV, Section 3 of the Constitution, Congress has the exclusive power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” One question arising from NTIA’s decision to transfer its Internet oversight functions to a third party is whether NTIA may relinquish possession and control of the root zone file—or any other similar component of the Internet that was financed and developed by the United States—without authorization from Congress. This concern was raised in 2000 by the Government Accountability Office (“GAO”), which questioned whether NTIA could relinquish authority over the root zone file and concluded that it was “unclear whether such a transition would involve a transfer of government property to a private entity.”[2] The 2000 GAO report further detailed that the Department of Commerce advised the GAO at the time that “we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary” to authorize transfer of the root zone file. Congress should be made aware of the legal status of the root zone file—or any other potential government property—before it makes any final decisions about whether to transfer the government’s Internet oversight functions to a third party.

Some observers and parties involved in the proposed transfer have asserted that the termination of NTIA’s contract with ICANN would not result in the transfer of United States Government property.[3] Others believe that termination of this contract would result in government property being transferred to ICANN and point to a number of factors that would indicate that the root zone file and other contractual deliverables are property of the United States. Supporters of this position point to the fact that the United States acquired title to the root zone file because it was invented pursuant to Department of Defense contracts.[4] In addition, the United States has long claimed ownership or control over the root zone file. For example, President Clinton’s Internet “czar” Ira Magaziner asserted United States ownership of the entire Domain Name System because “[t]he United States paid for the Internet, the Net was created under its auspices, and most importantly everything [researchers] did was pursuant to government contracts.”[5] Additionally the Commerce Department’s contract with ICANN explicitly declares that “[a]ll deliverables provided under this contract,” including the “automated root zone,” are “the property of the U.S. government.”[6] And Verisign and ICANN contracts make clear that changes to the root zone file cannot be made without approval of the Department of Commerce.[7] Congress has also been actively engaged in managing the root zone file. Recently, it enacted the Consolidated and Further Continuing Appropriations Act of 2015, which explicitly prohibited the Commerce Department from using federal funds to relinquish stewardship of the domain name system, “including responsibility with respect to the authoritative root zone file.”[8]

Given this history, we are concerned that NTIA might potentially relinquish ownership of some form of United States property. To inform the Congress so that it may take any necessary and appropriate steps regarding NTIA’s planned transition of the IANA functions, we would like the GAO to conduct a review to address a number of specific questions.

Would the termination of the NTIA’s contract with ICANN cause Government property, of any kind, to be transferred to ICANN?
2. Is the authoritative root zone file, or other related or similar materials or information, United States government property?
3. If so, does the NTIA have the authority to transfer the root zone file or, other related materials or information to a non-federal entity?

Please include in this report a description and analysis of the relevant legal authorities and case law dealing with the transfer of United States Government property. We understand that to perform this work, GAO will need to conduct both significant audit work and complex legal analysis…

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.