Three senators are fighting to keep the internet free for rest of the world, according to a letter recently sent to the Department of Commerce.

Last week senators Mike Lee (R-UT), Ted Cruz (R-TX) and James Lankford (R-OK) wrote to the Secretary of Commerce expressing their “deep concerns with a proposal submitted to the Department of Commerce and NTIA for review by the Internet Corporation for Assigned Names and Numbers (ICANN).” The proposal would be the culmination of a more than two-year push by the Obama administration to relinquish United States oversight of the internet to an international body, somewhat analogous in structure to the United Nations. Opponents of the measure have cited several problems with its implementation.

What is ICANN?

Originally chartered in 1998, ICANN’s job essentially is to handle the nuts and bolts of the internet’s basic operations. It’s a nonprofit body responsible for the maintenance and procedures of a lot of databases tied to internet domain names like ‘.com,’ ‘org,’ or ‘.net,’ performing technical maintenance work and traffic direction — as it is also responsible for ensuring that data goes from the correct places to the correct places — on the things that make the internet work stably and securely.

What is the current role of the United States?

A lot of the United States’ role in the current debate revolves around a department of ICANN known as the Internet Assigned Numbers Authority (IANA). Under ICANN’s current structure, IANA is “responsible for coordinating some of the key elements that keep the Internet running smoothly,” according to its website. Currently, the department operates under a contract from the U.S. Department of Commerce, which means that the organization, and therefore the internet’s maintenance department, essentially answers to the American people, which makes some sense, seeing as the internet is an American invention. Simply put, IANA’s contract has historically functioned as a backstop and guarantee of oversight that would likely not otherwise be present.

Why does the administration want to turn it over?

Proponents, like the Obama administration, see the internet as a global engine of commerce in the administering of which more countries and corporations deserve a stake.

“All of us are stakeholders in a strong and vibrant, global Internet,” said Commerce Secretary Penny Pritzker at an ICANN meeting in 2014.

The Internet has thrived precisely because citizens around the world have a voice in how the Internet is governed. That is why we — the United States government — support multistakeholder processes. This is our bedrock principle for Internet governance. Let me be clear about this. The United States will not allow the global Internet to be coopted by any person, entity, or nation seeking to substitute their parochial worldview for the collective wisdom of this community — you, the community of stakeholders represented so well here today.

We must make clear this approach is the best tool to secure the openness and the vibrancy of the Internet. We must ensure that ICANN can build on its efforts to strengthen the multistakeholder process and can become directly accountable to the customers of the IANA functions and to the broader Internet community.

Essentially, because the internet has become a global phenomenon, the administration contends, it requires more global oversight.

Why not turn it over?

As it turns out, there are lots of things problematic with the administration’s approach to doing this. Opponents find several problems with the specific implementation laid out by the Obama administration.

Since its development by researchers under United States contract, the Internet has become a fundamental important tool for connecting peoples and ideas across the globe. Secretary Pritzker was absolutely right when she argued that the preservation of a free and open Internet is far more important than any parochial or particular interests,” Sen. Lee said. “ICANN’s recent proposal endangers this freedom and transparency by paving the way for control by foreign governments to the detriment of all users, regardless of nation or ideology.

Foreign influence:

Among several other concerns, Lee, Lankford and Cruz mention international control, human rights, and the constitutional handling of United States property in the letter sent on May 19.

ICANN’s proposal significantly increases the power of foreign governments. Under the proposal, the foreign government body at ICANN known as the Government Advisory Committee (GAC), which consists of 162, will not only continue to have a special advisory power with ICANN’s Board of Directors, but the threshold for the board to reject GAC advice will increase from 50 percent to 60 percent. The inclusion of this provision directly contradicts an assurance ICANN CEO Fadi Chehade made to Senator Deb Fisher during a 2015 Senate Commerce Committee hearing in which he stated that increasing the margin that it would take to reject government-led proposals or advice would be “incongruent” with the stated goals of the IANA transition and that ‘[t]the board has looked at that matter and has pushed it back so that it’s off the table.’

Human rights:

Should regimes with terrible free speech records have a say in how information is made available? Not according to opponents of the administration’s proposal.

[T]he proposal insert into ICANN’s bylaws an undefined commitment to respect ‘internationally recognized human rights’ would open the door to the regulation of content. Inclusion of such a commitment would unquestionably be outside the historical mission of an organization whose functions are supposedly ‘very limited to the names and numbers and the protocol parameters which are way down in the plumbing of the internet.’

They are arguing that any addition to the bylaws implicitly also becomes part of the core mission of the organization, which becomes problematic for human rights/free speech/free press advocates when one takes a look at the track records of some of the “multistakeholders” involved, two of which mentioned by name are China and Iran.

“[W]e have uncovered that ICANN’s Beijing office is actually located within the same building as the Cyberspace Administration of China, which is the central agency within the Chinese government’s censorship regime,” reads the letter. According to the arguments made by the authors, allowing Beijing to house such a vital office so close to where it controls internet traffic for its own population would only serve to give the communist regime more leeway to contradict the above claims made by the Secretary of Commerce and further suppress free speech inside and about the Middle Kingdom.

“For the average Chinese citizen freedom of publication is actually nothing more than the freedom to submit,” reads a report from the United States Congressional-Executive Commission on China.

In meetings with Commission staff Chinese officials have stated that anyone wanting to publish their opinions may submit their article or book to a government-licensed publisher, but if they are unable to find a licensed publisher, then the only way they can legally exercise their constitutional right to freedom of publication is to ‘enjoy their works themselves, or give copies to friends and family.’
Currently, if an average person in China wants to publish their opinions to an audience broader than their voice can carry and they do not have a free speech elite patron or a willing government publishing house, the safest mechanism is via Internet bulletin board systems run by the government.
Iran has also made overtures against the United States’ current oversight of the world wide web.

During a recent CCWG-Accountability “Review of Draft Bylaws” meeting on April 11, 2016, a representative for Iran stated: “We should not take it granted that jurisdiction is already agreed to be totally based on U.S. law.” Iran was supported by representatives from Argentina and Brazil who suggested that jurisdiction should be a subject for work stream 2, which as previously discussed, will not be subjected to review by the administration or Congress.

Cue a report from the BBC last year, which claims that Islamist “hardliners” have turned up the heat on freedom of expression inside the Shia Regime.

“This year more than a dozen concerts, lectures and other cultural events have been called off after pressure from hardliners — despite being officially sanctioned by the authorities,” reads the story, published in May 2015. “It’s been happening across the country, at concert halls and on university campuses.”

Nor have such free speech violations been restricted to last year. Hila Sedighi, an Iranian poet who backed a reformist candidate in the country’s 2009 presidential election, was jailed in January of 2016 amidst an “apparent crackdown” on free speech and political dissent, according to Reuters.

Though not mentioned in the letter, Saudi Arabia also deserves an honorable mention in this section. Perhaps the most visible example of the Sunni Kingdom’s restriction of internet freedom is Raif Badawi, a blogger who was convicted of “insulting Islam” in 2014 and sentenced to jail time and no fewer than 1000 lashes. Two years prior, as Badawi sat in jail awaiting trial, the Sunni Kingdom, which currently ranks 165 out of 180 countries in press freedom, used its delegate status at ICANN to protest several domain names including ‘.gay’ and ‘.islam,’ mostly on cultural and religious grounds.

“Few tech media outlets are reporting the risks from the planned radical changes to Internet governance. Many tech reporters have simply accepted the Obama administration’s disingenuous claim that the U.S. role is merely ‘clerical,’” reads an op-ed by L. Gordon Crovitz in the Wall Street Journal. “It’s as clerical as the passage of the U.S. Navy in the South China Sea: The U.S. defends the open Internet by making sure no one else interferes, just as it dispatches ships to ensure that the sea lanes stay open.”

The Constitution:

Changing IANA’s contract without Congress’ authority could also create constitutional problems, depending on whether or not things created by the U.S. military actually belong to the U.S. government.

The argument works this way, the root zone file, which is essentially the internet’s roadmap and establishes where everything goes in the virtual world, was developed by the Department of Defense with taxpayer funds, and is therefore very limited to the names and numbers and the protocol parameters which are way down in the plumbing of the internet.” Legal experts surrounding the case are still fuzzy on whether this means that the file is property of the United States government, but if it is, then it will literally take an act of Congress to relinquish control of ICANN.

Article IV, section 3 of the United States Constitution states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” This means that the administration’s plan to internationalize control of the internet through the Department of Commerce could be an unconstitutional move if the root zone file is indeed determined to be property of the U.S. government.

“[N]either Congress nor the administration knows with absolute certainty if the IANA transition would include the transfer of government property,” reads the Cruz-Lee-Lankford letter. “This is despite the fact that Assistant Secretary Strickling testified before the United States Senate that “there is no Government property that is the subject of this contract… I think the GAO agrees with us as well based on a study they did back in 2000 when they looked at this question.”

“The 2000 GAO report was actually indeterminate on the property question and concluded that it was ‘unclear whether such a transition would involve a transfer of government property to a private entity.’”

What happens now?

As it stands, the handover was originally supposed to happen in September 2015, but was delayed for a year. Now, whether or not the administration hands over the keys to the web depends on whether Congress takes action against the move in the next few months.

How can this be stopped?

Congress has blocked funding for the transition under the last three appropriations bills, which it could very well do again. They could also prohibit the Department of Commerce’s authority to relinquish the contract, but this again depends on whether the contract constitutes property of the federal government.

“He who controls all IP addresses controls the Internet,” stated former Network Solutions, Inc. CEO Mike Daniels in the late 1990s. Whether or not the United States cedes its oversight of this control now lies almost completely with the United States Congress. (For more from the author of “Why These 3 Senators Are Standing up to Obama on Internet Freedom” please click HERE)

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