When the Obama administration announced in March 2014 that it would be transferring key aspects of the Internet domain name system governance from the U.S. government to the Internet Corporation for Assigned Names and Numbers (ICANN), it probably thought it would be a slam dunk.
That, they would make the announcement transitioning Internet governance, the prescribed date of Sept. 30, 2015 would come and go, and that would be that. ICANN would handle the administration of Internet domain names and IP addresses free of government oversight.
What the White House did not anticipate was the determination of U.S. Rep. Sean Duffy (R-Wis.) to protect the First Amendment rights of everyone who uses the Internet, and then of Congress, which in a rare move not once but twice blocked the transition.
The provision was then retained in the Fiscal Year 2015 continuing resolution, and then again in the partial Fiscal Year 2016 continuing resolution, the funding of which expires Dec. 11, 2015. Both of these were signed into law.
Duffy had the foresight to see the lack of First Amendment protections post-transition. At the time his amendment was first adopted by the House, Duffy extolled the virtues of the current Internet governance arrangement under government contract in a statement, “As Americans, we value our Constitutional right of Freedom of Speech and have promoted this value throughout the world. The U.S. is best positioned to maintain and protect a free and open Internet, through its stewardship of these critical functions, as it has done for decades. We should not give up this stewardship and allow the United Nations or countries like China, Iran, or Russia, that do not hold free speech in the same regard, the opportunity to take control. If the U.S. turns over this responsibility to the international community, there is no turning back.”
Duffy is right.
Under the government contract, the Commerce Department approves changes made by ICANN to the U.S.-based authoritative root zone file — the file that links up domain names with corresponding IP addresses. So far, that arrangement has worked with little controversy. If the government were to start censoring websites, a First Amendment claim could easily be made against the government in federal court.
But, with the contract gone, no such recourse would exist. The U.S. government would no longer be responsible for approving changes to the root zone file. ICANN, as the world’s sole resolver of domain names, could conceivably block certain domain names without any First Amendment remedy.
One need look no further than a recent arrangement between XYZ.com and the government of China, highlighted by the Wall Street Journal’s Gordon Crovitz, to block 12,000 undesirable domain names from being purchased on the .xyz, .college, .rent, .protection and .security top-level domains. China and Russia have both stated a desire that the Internet domain name system be overseen by the United Nations. Elsewhere, France and Canada are demanding Google remove search results from their servers.
This is the sort of undue foreign influence that will be waged against ICANN once it is out from under U.S. oversight. So, Duffy is being proven correct. The risk of foreign capture of the Internet increases without the government contract, and once gone, there will be no getting back those First Amendment protections.
Thankfully, Congress has acted to put the brakes on the Internet giveaway — for now.
It might never have happened without Duffy’s determination, and without further action, the free and open Internet remains in danger. Congress needs to keep the Duffy defund in the next continuing resolution, and successive spending bills. In the very least, the goal needs to be to push this thing out beyond the Obama administration. No less than the free speech of everyone who uses the Internet depends on it.
This is a guest post by Robert Romano senior editor of Americans for Limited Government.