The National Telecommunications and Information Administration (NTIA) on June 9 announced a plan preparing to transition the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers (ICANN) on September 30.
The report proclaimed, “NTIA, along with other U.S. Government agencies, has reviewed the plan… NTIA finds that the IANA Stewardship Transition Proposal meets the criteria necessary to complete the long-promised privatization of the IANA functions.”
There is only one problem.
The relinquishment of the responsibility over the IANA functions is prohibited under Section 539(a) of the Consolidated Appropriations Act, enacted into law late last year: “None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration, during fiscal year 2016, 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.”
Transitioning the IANA functions while the defund is in effect would be a violation of the Antideficiency Act at 31 U.S.C. § 1341(a)(1)(A), which prohibits any federal agency from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available.” Agency officials violate the Antideficiency Act when they expend appropriated funds in violation of prohibitions in an appropriations act, since the agency’s appropriations were not available for those prohibited purposes.
Federal officials who “knowingly and willfully” violate this prohibition, which is a felony, are subject to a fine of not more than $5,000 and a maximum jail term of two years.
By preparing a plan for relinquishing responsibility over the IANA functions, NTIA agency officials are apparently planning to violate the congressional defund and the Antideficiency Act. That is illegal under 18 U.S.C. § 371, which makes it a crime to “conspire either to commit any offense against the United States… [and] do any act to effect the object of the conspiracy.” Since transitioning the IANA functions is illegal, planning and preparing for the transition also clearly does.
Those convicted under that section “shall be fined under this title,” which would also be a maximum fine of $5,000 since tied to conspiracy to violate the Antideficiency Act, “or imprisoned not more than five years, or both.”
NTIA administrator Lawrence Strickling is aware of the defund and agree it prevents NTIA from transitioning the IANA functions whilst the prohibition is in place. On Jan. 27, 2015 at the State of the Net Conference in Washington, D.C. he said, “The act does restrict NTIA from using appropriated dollars to relinquish our stewardship during fiscal year 2015 with respect to Internet domain name system functions. We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract’s current expiration date of September 30, 2015. Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA’s role in approving changes to the authoritative root zone file prior to September 30. On these points, there is no ambiguity.”
Therefore, the agency is “knowingly and willfully” preparing a plan that if effected today, would violate the congressional defund, and constitute a criminal conspiracy.
But it gets worse. Since the final outcome of the transition will be that ICANN will be the world’s sole resolver of Internet domain names and numerical IP addresses, it would result in a situation inconsistent with antitrust law. ICANN receives exclusive fees of $0.18 for every domain name sold in the world, raking in tens of millions of dollars every year. Currently, the domain name system of overseen by a U.S. government contract, but post-transition, it will be completely up to ICANN to set these fees.
The problem here is that 15 U.S.C. § 2 prohibits and makes a felony any attempt “to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 13 and § 14 forbid any business practice where the effect “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.”
Here the penalties are even stiffer. Violations of antitrust “shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”
Antitrust law challenges to IANA functions administrator were anticipated in the 1998 NTIA statement of policy: “Several commenters suggested that the U.S. Government should provide full antitrust immunity or indemnification for the new corporation. Others noted that potential antitrust liability would provide an important safeguard against institutional inflexibility and abuses of power.”
To which, NTIA responded, saying it would seek no such immunity for the corporation and that antitrust would actually help keep the corporation in line: “Applicable antitrust law will provide accountability to and protection for the international Internet community. Legal challenges and lawsuits can be expected within the normal course of business for any enterprise and the new corporation should anticipate this reality.”
So, what the heck is NTIA doing? It is knowingly, based on its past statements, not only planning to transfer a governmental function to a singular corporation in violation of the law, but also to create a global monopoly over the world’s Internet domain name system, which carries an even greater penalty.
As the author of the defund, Rep. Sean Duffy (R-Wis.), noted in a letter in January to ICANN, “The Commerce Department has no money to consider your proposal and I will continue to do everything in my power to ensure that it never does.” Now, if anyone could speak to the intent of the legislation, it would be Duffy, who wrote it.
This is significant because NTIA administrator Lawrence Strickling has claimed he consulted with Congressional staff on the rider’s intent, but clearly, he never consulted with the only one who mattered and that was Duffy. Nobody ever asked that office. Who did they consult with? Opponents of the defund?
In Singapore on Feb. 15, 2015, Assistant Secretary for Communications and Information at the Department of Commerce Lawrence Strickling 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.”
Except, Congress never required regular reporting to “provide [Congress] regular reports and updates on how the transition is going.”
In fact, 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.
Ironically, when NTIA unilaterally modified the IANA functions contract in 2015, it never bothered to notify Congress 45 days ahead of time.
Another reporting requirement was Congress required NTIA to submit a report due January 30, 2015 “regarding any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States.”
In response in its first quarterly report, NTIA told Congress that “Our preliminary answer is that the criteria for the plan that NTIA established in its March 2014 announcement will ensure an outcome that is not ‘deleterious’ to the United States.”
Besides this vague assurance, NTIA never produced its contingency plan should the IANA functions transition harm U.S. interests in its subsequent quarterly reports to Congress here, here, here, here and here.
Again at the Jan. 2015 State of the Net Conference, Strickling said, “The act imposes regular reporting requirements on NTIA to keep Congress apprised of the transition process.”
So, while on one hand, Strickling seems to want to follow reporting requirements that Congress never enacted, and then cite those reporting requirements as somehow empowering him to work on the IANA functions transition that is prohibited by law, on the other hand, his agency has failed to follow the actual reporting requirements that Congress did enact. This is sloppy work to say the least.
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.”
But as noted in a complaint to the Commerce Department Inspector General by Americans for Limited Government Foundation President and Counsel Nathan Mehrens alleging the Antideficiency Act violations, “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, and which the author of the bill stated does not even allow NTIA consider transitioning the functions.
In a statement reacting to the transition, Americans for Limited Government President Rick Manning was emphatic, “This clear slap in the face of Congress’ power of the purse transcends the important issue of whether the U.S. should divest their oversight over Internet governance and cuts to the heart of whether the power of the purse rests with Congress at all.”
Members of Congress were not impressed with the NTIA announcement either.
Chairman of the House Commerce, Science and Justice Appropriations Subcommittee Rep. John Culberson (R-Texas) fired a letter off to the Secretary of Commerce Penny Pritzker warning, “Section 539 of the Fiscal Year 2016 Omnibus prohibits funds provided in the Act from being used to relinquish the NTIA’s responsibility for the authoritative root zone file and the IANA functions, and I will ensure this section is fully enforced.”
Culberson added, “As we have previously discussed, I continue to oppose the use of any funds to plan for, prepare for, work on [the] transition [of] the Internet Domain Name System functions.”
And U.S. Sens. Ted Cruz (R-Texas), James Lankford (R-Okla.), Mike Lee (R-Utah), and Rep. Sean Duffy (R-Wis.) issued an equally condemning statement with the ominous headline, “Obama administration preparations to give away the Internet violate federal law.”
“Today’s announcement by the Obama administration is a clear indication that it has flagrantly violated federal law,” Cruz, Lankford, Lee and Duffy said. “This is the latest step in a troubling series of steps that the administration has taken to relinquish its responsibilities, and it should send a concerning message to every American. If the United States relinquishes its supervision of the Internet — which it has nurtured from inception to become the greatest source of information in human history — authoritarian regimes could try to undermine the new system of Internet governance and thereby threaten free speech around the world. Congress must enact the Protecting Internet Freedom Act and continue to fight for a free Internet.”
The release goes on to note, “The administration has violated that prohibition by funding projects intended to facilitate the proposed transition of responsibility to ICANN. For example, in March 2016, the Obama administration awarded a contract to the Berkman Center at Harvard University to provide NTIA with an independent review and assessment of the transition. This contract was awarded under the false premise that Congress had ‘mandated the review prior to NTIA transitioning its stewardship of certain Internet technical functions to the global multistakeholder community, which is to be completed by June 30, 2016.’ But Congress never mandated this action.”
The only question is if anybody in Congress or law enforcement will truly do anything about it. Maybe we’ll find out if the laws Congress writes are worth the paper they’re printed on or not.