12 August 2016

Coalition Letter Urging Congress To Sue NTIA and Delay IANA Transition

"We agree that Internet governance should work from the bottom up, driven by the global community of private sector, civil society and technical stakeholders. But that “multistakeholder” model is fragile. Without robust safeguards, Internet governance could fall under the sway of governments hostile to freedoms protected by the First Amendment. Ominously, governments will gain a formal voting role in ICANN for the first time when the new bylaws are implemented. NTIA has expressed its approval of this expanded role for governments in ICANN."--Coalition Letter (embed below)
A host of organizations and individuals, including Esther Dyson, ICANN's founding Chairman (1998-2000), and Brett Schaefer (Heritage Foundation), active participant in ICANN's CCWG-Accountability WS1 process which is part of the IANA Stewardship Transition Proposal approved in June by NTIA (pdf), have written a "coalition letter" (embed below) to the Republican and Democratic leaders of the U.S. House of Representatives and U.S. Senate, urging them to sue NTIA (U.S. Department of Commerce and Obama Administration):
"... Sen. Grassley and Rep. Goodlatte are correct: if NTIA allows the [IANA functions] contract to lapse, it will have violated federal law.* The decision to abandon an 18-year contractual relationship governing the Internet has obviously consumed significant NTIA resources, both to fund outside experts and to pay for time spent on the issue and on NTIA employees making a decision about whether to extend the contract. Again, Administrator Strickling himself acknowledged that the rider “does restrict NTIA from using appropriated dollars to relinquish our stewardship…. [of IANA].” Congress should make clear that it will sue to enforce the funding prohibition. As it did in 2014, the House needs to vote to authorize Speaker Ryan to sue to defend its Article I powers — not only the Power of the Purse but also the sole right to dispose of federal property, which the IANA function may well be. A federal court could issue a writ of mandamus, ordering NTIA to exercise the option to renew the contract, or a declaratory judgment that, if the IANA contract terminates, the IANA function contract rights revert to NTIA, not to ICANN. Such a ruling could effectively unwind the Transition. Congress should also renew the funding prohibition for FY2017 so that it has time to properly conduct its own assessment of whether ICANN is ready for the Transition. We acknowledge that the Administration's actions have raised expectations that the Transition is imminent and there will be some frustration in the ICANN community if the IANA contract is renewed again (as it was last summer). But far greater disruption would result if a U.S. court forced the reversal of the Transition after the fact. Rushing the Transition could also prove more disruptive than delaying it—for instance, by delegitimizing ICANN if its new governance structure proves too weak or fractious, or if ICANN becomes more vulnerable to antitrust lawsuits due to the expiration of its contractual relationship with the U.S. government ..." Coalition Letter (embed below)(emphasis added)
*citing in a footnote: "31 USC § 1341(a)(1)(A). See also 31 U.S.C § 1350 (fines up to $5,000 and prison terms up to 2 years)."
31 USC § 1341(a)(1) An officer or employee of the United States Government or of the District of Columbia government may not—(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;
Coalition Letter (highlighting added):



See also: ICANN, NTIA, IANA Transition, Fundamental Problems, the Macro View | DomainMondo.com 16 July 2016

and ICANN Board Transmits IANA Stewardship Transition Proposal and Enhancing ICANN Accountability Recommendations to NTIA | ICANN.org March 10, 2016


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