[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 18:42:10 UTC 2015

I doubt that.

I think the situation is either that the Senator from Alberta does not 
understand or its a deliberate ploy for political advantage.

(That is an .OR. not an .XOR. operation)

I do have doubt as to the legality of the transition, but they do not 
extend as far as its constitutionality.

Nigel

On 28/09/15 18:54, Paul Rosenzweig wrote:
> The below from Senator Cruz is self-explanatory.  I have no doubt it
> will make Dr. Lisse very happy.
>
> Paul
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> Skype: paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
> 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, “Not Obama’s to Give Away.”
> <http://www.wsj.com/articles/not-obamas-to-give-away-1443386189>
>
> *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, “Not Obama’s to Give Away.”
> <http://www.wsj.com/articles/not-obamas-to-give-away-1443386189>
>
> 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, Sen. Cruz recently filed the DOTCOM Act
> <http://www.cruz.senate.gov/?p=press_release&id=2402> 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 here
> <http://cruz.senate.gov/files/documents/Letters/20150922%20Grassley%20Cruz%20Goodlatte%20Issa%20GAO%20Request%20ICANN.pdf> 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)
>
> ###
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>