A key player of the Obama administration’s internet giveaway was unable to offer a straight answer about how the organization that handles the system’s road map would be run, or whether or not it would be moved outside of the United States.

At a Senate Judiciary Subcommittee hearing about the proposed internet giveaway at the end of the month, Sen. Ted Cruz, R-Texas (A, 97%) confronted Goran Marby, president and CEO of the Internet Corporation for Assigned Names and Numbers (ICANN), which is responsible for maintaining the internet’s address systems.

In a particularly tense exchange with Marby, the ICANN chief could not seem to find a straight answer on whether or not the organization — which currently operates as a nonprofit under California law — could see its bylaws altered by a multi-stakeholder body, or whether the organization could be moved to countries under oppressive regimes.

Under the structure of the proposed giveaway, ICANN would be no longer be tied to the United States government, which opponents of the move argue would remove free speech protections from the government’s overall administration.

During the exchange, in which Goran repeatedly dodged the chair’s questions, the nonprofit leader could not even answer the question regarding whether or not he agreed with Reporters Without Borders’ assertion that the People’s Republic of China is an “enemy of the internet” due to its repeated free speech violations.

Cruz: So, just to clarify your testimony is the community – the U.S. businesses – who have had a questionable record of protecting free speech in the past have the authority to change the bylaws in the future. Is that correct.

Marby: As I stated earlier, if someone really wants to change this setting, it’s easier to start an alternative ICANN … outside the U.S.

Cruz: I’m not asking you which is easier. I’m asking if the bylaws can be changed.

Marby: There are so many checks and balances within the system, I would say that it’s hardly possible to do.

Cruz: Sir, this isn’t a complicated question. Can the bylaws be changed? You’re saying, ‘gosh, it would be easier to do something else.’ Either the bylaws can be changed, or they can’t.

Marby: I think I’ve answered this to the best of my ability. I cannot do it, the community can after all checks and balances, but the whole bylaws are built on California law.

Cruz: And under California law, the bylaws can be changed under what you referred to as the stakeholders community, is that correct?

Marby finally gave a stilted answer assuring that the bylaws could indeed be changed by the parties mentioned, but only after satisfying ICANN’s “checks and balances,” which also represent internet users and other stakeholders outside of large tech companies.

Earlier in the hearing, Sen. Cruz also voiced his concerns about the role that private corporations would play in the governance of the internet under the terms of the transition, given the reputation that many have earned for suppressing free speech on their own platforms.

“Under the guardianship of the United States and the First Amendment, the internet has truly become an oasis of freedom,” said Cruz in his opening statement, but warned that severing that role could lead to infringement of free speech due to powerful corporations and oppressive regimes.

“Imagine an internet run like one of our large, private universities today, with speech codes and safe zones — an Internet that determines some terms are too scary … microaggressions are too troubling … we will not allow them to be spoken on the Internet.

“Imagine an internet run like far too many European countries that punish so-called ‘hate speech’ — a notoriously malleable concept that has often been used to suppress views disfavored by those in power,” Cruz continued. “Or imagine an internet run like many Middle Eastern countries that punish what they deem to be blasphemy. Or imagine an internet run like China or Russia that punish and incarcerate those who engage in political dissent.”

Cruz referred to ICANN as a “corporation with a Byzantine governing structure designed to blur lines of accountability that is run by global bureaucrats who are supposedly accountable to the technocrats, to multinational corporations, to governments, including some of the most oppressive regimes in the world like China, Iran, and Russia.”

In his opening statement, Judiciary Chairman Chuck Grassley, R-Iowa (D, 68%) also voiced concerns about the constitutionality of the proposed handoff, which rests on whether or not America’s “historic role” as steward of the internet also means that the information system counts as U.S. government property.

“We’ve continued to engage with the administration about this transition and to date the answers we’ve received have been inadequate,” reads a statement from Grassely. “It’s clear that the administration hasn’t conducted a thorough legal analysis of the many issues outstanding.”

Proponents of the handoff argue that the handoff is somewhere between a good thing and an irrelevant thing, like Techdirt’s Mike Masnick, who calls the government’s role in internet governance “flimsy” and near-nonexistent.

During the hearing, pro-giveaway testimonies attempted to cast the handoff in terms of decentralization and free markets, quoting reports from center-right organizations and urging those distrustful of the move to trust market forces and privatization in the matter.

“The best way to preserve Internet freedom is to depend on the community of stakeholders who own, operate, and transact business and exchange information over the myriad of networks that comprise the Internet,” said National Telecommunications and Information Administration Assistant Secretary Lawrence Strickling, who also said that the U.S. government’s current internet infrastructure framework “is too limited in scope” to effectively protect freedom of expression on the Web.

Sen. Cruz took issue with this sentiment, pointing to the fact that many of the tech companies who have come out in support of the giveaway have a spotty record on internet censorship themselves. In May, Facebook, Microsoft, Twitter, and YouTube partnered with the European Union to promote a code of conduct that would crack down on what the international body considers “hate speech.”

“That’s not what I would call a fine record of free speech,” said Cruz, who accused proponents of “asking the American people to trust private companies with control of their free speech.”

NTIA’s Strickling contested the assertion, saying that the government’s role is at the highest level and has no control over content on websites at the “second and third level.”

During the second panel, Tech Freedom president Berin Szoka also urged congress to assert the power of the purse on the issue — alleging that the NTIA had already violated previous congressional mandates to not use public funds to work on the transition — and block the transition via appropriations riders at the end of the month.

“The power of the purse is not an auxiliary power, to be used sparingly and construed narrowly, it is the ultimate power of Congress,” he concluded.

The giveaway will take place on September 30 unless congress passes legislation specifically blocking it. (For more from the author of “Obama’s Key Internet Giveaway Advocate Can’t Give a Straight Answer on Free Speech Concerns” please click HERE)

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