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

[Greg Shatan]

I'd be interested to know what our distinguished guest, Ira Magaziner,
quoted here in support of the theory behind the letter, thinks of this....

On Mon, Sep 28, 2015 at 2:42 PM, Nigel Roberts <nigel at channelisles.net>
wrote:

> 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)
>>
>> ###
>>
>>
>>
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