Communications, Constitution, Issues

Why is NTIA still implementing Internet giveaway in the face of an explicit Congressional prohibition?

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For the past two years, Congress has prohibited the National Telecommunications and Information Administration (NTIA) from using any funds carry out any transition control of the Internet’s domain name system functions to the private Internet Corporation of Assigned Names and Numbers (ICANN).

Specifically, the law said, “None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration … with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.”ProtectTheInternet

It was U.S. Rep. Sean Duffy (R-Wis.) who authored the amendment to the Department of Commerce appropriations bill that denied funding to the administration to perform the transition, and passed 229 to 178 on May 30, 2014. The provision was then retained in the Fiscal Year 2015 continuing resolution, and then again in the 2016 omnibus spending bill.

Yet, despite the prohibitions, the NTIA has been busy proceeding with the giveaway, attending junkets and other conferences overseas to plan it out. And Americans for Limited Government Foundation President Nathan Mehrens wants to know why.

Mehrens has filed a complaint with the Commerce Department Inspector General David Smith on Feb. 1, stating, “Despite the explicit prohibition, the NTIA is clearly engaged in activities that are designed to lead to the relinquishment of its responsibilities regarding Internet domain name system functions, including responsibility with respect to the authoritative root zone fine and the Internet Assigned Numbers Authority functions. The NTIA personnel have traveled to numerous conferences on internet governance and speeches from NTIA personnel clearly indicate that they are moving ahead as if Congress had not acted to prohibit their very actions.”

At one those conference, in Singapore on Feb. 15, 2015, Assistant Secretary for Communications and Information at the Department of Commerce Lawrence Strickling even answered a question about why he believed he was allowed to attend at taxpayer expense and still work on the Internet giveaway, saying the defund doesn’t defund that much.

“So yes there was a rider attached into our budget in the budget bill last December that said that we can’t spend appropriated dollars to complete transition before the end of next September,” Strickling said, adding, “And so we have taken that seriously and I’ve reported out that there will not be a transition before next—the end of next September. At the same time though there was some commentators, not necessarily anybody with any expertise were saying ah this shuts down NTIA. They have to sit on the sidelines and not do anything. You know, like our hands are tied. And so that concerned us. We didn’t read the bill that way or the law that way and we’ve consulted with — informally with both the House and the Senate, both Democrats and Republicans to get an understanding as to what exactly they intended.”

Then Strickling offered, “So one of the things was even in the rider it said you must provide us regular reports and updates on how the transition is going. So they clearly intended us to do things like come to the ICANN meetings and watch and report back what’s going on. We clearly are participating in the GAC and none of that affects that. And the only real issue was to what extent do we provide feedback during the process to the community.”

And yet, the only reporting in the omnibus spending bill for fiscal year 2015 Congress directed “NTIA to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA’s role with respect to ICANN or IANA activities.” That’s it. Report if there are any changes to the current contract. Not, travel all over the world and create a plan for relinquishing the Internet Assigned Numbers Authority (IANA) functions.

Strickling also offered this gem, “And on that, you know, the assurances I got from most of the staff on the Hill was they didn’t see any problem with that because… we want to protect the interests of the United States in all of this.”

Well, that just makes it okay, then, right?

Wrong, said Mehrens. As he noted in his Inspector General complaint, “it is not Hill staff that decide whether there is a problem, but rather the actual language passed by Congress should be examined.” Which says, again, that none of the funds may be used to relinquish responsibility for the IANA functions.

In addition, the U.S. Constitution in Article I, Section 9, Clause 7 clearly states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And the Antideficiency Act at 31 U.S.C. § 1341(a)(1)(A) states that the federal government cannot “make or authorize an expenditure or obligation exceeding an amount available in an appropriation fund for the expenditure or obligation.”

And as noted by Mehrens’ complaint, “Federal officials who ‘knowingly and willfully’ violate this prohibition commit a criminal offense and are subject to punishment of a fine of not more than $5,000 and a maximum jail term of two years.”

At the moment it is unknown how much tax dollars have been spent by NTIA on the transition since the prohibitions went into effect two years ago. But to find out, Mehrens requested the Inspector General “open an investigation into the information discussed above, investigate what other actions NTIA is taking to relinquish its responsibilities as discussed above, and take further appropriate action to ensure that taxpayer funds are protected and not spent in violation of the law.”

Mehrens has been informed by the Inspector General that they have referred the matter for an investigation.

This is a guest post by Robert Romano senior editor of Americans for Limited Government.

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