[CCWG-ACCT] FW: ICYMI: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet

Mon Sep 28 17:54:26 UTC 2015

The below from Senator Cruz is self-explanatory.  I have no doubt it will
make Dr. Lisse very happy.  

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com 

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M: +1 (202) 329-9650

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Skype: paul.rosenzweig1066

<http://www.redbranchconsulting.com/index.php?option=com_content&view=articl
e&id=19&Itemid=9> Link to my PGP Key

ICYMI- U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary Committee
Chairman Charles Grassley (R-Iowa), House Judiciary Committee Chairman Bob
Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman of the House
Judiciary Subcommittee on Courts, Intellectual Property, and the Internet,
sent a letter to the Government Accountability Office (GAO) requesting an
affirmative determination of whether the Obama Administration’s plan to
transfer U.S. oversight of the Internet violates the Constitution.

The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter
today in his Information Age column,
<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> “Not
Obama’s to Give Away.”

From: Press, Cruz (Cruz) 
Sent: Monday, September 28, 2015 11:54 AM
Subject: RELEASE: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine
Whether Obama Administration Has Power to Give Away the Internet

UNITED STATES SENATE

Sen. Ted Cruz Press Office

FOR IMMEDIATE RELEASE

Cruz Press Office: 202-228-7561

Phil Novack: phil_novack at cruz.senate.gov
<mailto:phil_novack at cruz.senate.gov> 

September 28, 2015

Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama
Administration Has Power to Give Away the Internet

Judiciary Chairmen Grassley and Goodlatte, with Rep. Issa, join Cruz to get
answers on whether Administration’s plan violates the Constitution

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary
Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee
Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman
of the House Judiciary Subcommittee on Courts, Intellectual Property, and
the Internet, sent a letter to the Government Accountability Office (GAO)
requesting an affirmative determination of whether the Obama
Administration’s plan to transfer U.S. oversight of the Internet violates
the Constitution.

The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter
today in his Information Age column,
<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> “Not
Obama’s to Give Away.”

Sen. Cruz said: “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.’ If the contract governing U.S. oversight of the Internet is
indeed government property, the Administration’s intention to cede control
to the ‘global stakeholder community’ -- including nations like Iran, Russia
and China that do not value free speech and in fact seek to stifle it -- is
in violation of the Constitution and should be stopped.”

The letter is being sent at a time when efforts by both the Administration
and Congress, via the DOTCOM Act, are underway to facilitate the transition
of U.S. control over the Internet without an affirmative vote from Congress.
In another action to protect U.S. control of the Internet,
<http://www.cruz.senate.gov/?p=press_release&id=2402> Sen. Cruz recently
filed the DOTCOM Act as an amendment to the highway reauthorization bill the
Senate considered in July. Cruz's amendment is identical to the original
version of the DOTCOM Act being considered by the Senate with one exception:
it would require Congress to have an affirmative up or down vote on the
Obama Administration's plan to give away the Internet.

Read the full text of the Cruz-Grassley-Goodlatte-Issa letter
<http://cruz.senate.gov/files/documents/Letters/20150922%20Grassley%20Cruz%2
0Goodlatte%20Issa%20GAO%20Request%20ICANN.pdf> here and below:

September 22, 2015

Mr. Gene Dodaro

Comptroller General

U.S. Government Accountability Office

441 G Street, N.W.

Washington, DC  20548

 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.

1. 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.

Please contact Jonathan Nabavi (Chairman Grassley), Sean McLean (Senator
Cruz), Vishal Amin (Chairman Goodlatte), and Veronica Wong (Congressman
Issa) of our staffs if there are questions regarding this request.

Sincerely,

______________________
_________________________

Charles E. Grassley
Ted Cruz

Chairman
United States Senator

Senate Committee on the Judiciary                                       

_______________________
__________________________

Bob Goodlatte
Darrell Issa

Chairman
Member of Congress

House Committee on the Judiciary

[1]See, Verisign Company Information:
http://www.verisign.com/en_US/company-information/index.xhtml

[2]U.S. Government Accountability Office., GAO-B-284206, Department of
Commerce: Relationship with the Internet Corporation for Assigned Names and
Numbers (2000)

[3]Letter from Lawrence Strickling, Assistant Sec’y for Commc’ns and Info.,
U.S. Dep’t of Commerce, to Representative Sean Duffy & Representative James
Sensenbrenner, U.S. House of Representatives (June 11, 2015)

[4]U.S. Congressional Research Service. Internet Governance and the Domain
Name System: Issues for Congress (R42351; August 18, 2015), by Lennard G.
Kruger

[5]Jack Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a
Borderless World 41 (2006)

[6]Internet Assigned Numbers Authority Functions Contract between U.S.
Department of Commerce and Internet Corporation for Assigned Names and
Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012.

[7]See, Amendment 11 of the Cooperative Agreement NCR-9218742 between the
U.S. Department of Commerce and Verisign, Inc. Also see, Internet Assigned
Numbers Authority Functions Contract between U.S. Department of Commerce and
Internet Corporation for Assigned Names and Numbers. Contract Number
SA1301-12-CN-0035. October 1, 2012.

[8]Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No
113-235, § 540, 128 Stat. 2130, 2217 (Dec. 16, 2014)

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