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

[Aikman-Scalese, Anne]

I rest my case as to the Congressional hurdles we face and the airtight case that must be delivered to Congress by the NTIA.  This question of oversight of(or backstop to)  the NTIA supervision of the Internet is likely to get much more press as the Republican primary proceeds.

Agree with Chris Disspain that the difference between the AoC commitment on location and jurisdiction is going to be an issue but there is nothing we can do about it at this stage - that IS the Multistakeholder process and either we follow and believe in that process or we don't.  This is why time was spent in Los Angeles carefully reviewing ALL public comments.   The process followed by the CCWG - ACCT must be systematic and must be reflective of the process followed in previous Working Groups.  If not, we have zero integrity and zero claim that "The Multi-Stakeholder process is working and is a beautiful thing."

I continue to applaud our Chairs for their handling of this Committee and their reasoned approach to the consideration of public comment from all commenters.  As previously stated, I personally support the notion that "tweaks" can be made to the Sole Member model in order to address concerns raised in the public comment period, including comments received from the Board.    Further, I would favor an agreement by ICANN to indemnify any director who might be sued for violating a fiduciary duty for following a decision taken by the Sole Member or for resigning because of a decision taken by the Sole Member.

Let's face the fact that the entire approved Final Report of the CWG-Stewardship also sets the boundaries of certain Accountability work that must be accomplished by the CCWG-ACCT.    Rejecting those boundaries and starting all over again would clearly be "top-down."    The CCWG-ACCT Work Stream 1 Charter is also a reality which imposes boundaries.  A further boundary is the emphasis on Human Rights - which arguably has nothing to do with what is absolutely the "minimum necessary" for the IANA transition to take place.

We are where we are as a result of our beloved "Multistakeholder Process" so it seems appropriate to ask all public commenters, including the Board and ICANN staff, to embrace these facts as we also embrace the transition timing that we are urged to honor as another boundary or condition that must be satisfied and must occur "before the storm."

At this point, it may be appropriate to ask the Board (and Jones Day) to address in writing  before Dublin what restrictions on Member powers it would advise to mitigate the risks identified in its public comments.

Anne

[cid:image002.gif at 01D0F9DE.A4D8C530]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>







From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Monday, September 28, 2015 10:54 AM
To: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] FW: ICYMI: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet

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

[cid:image003.png at 01D0F9DE.A4D8C530]
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)





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