IANA Transition Premature say Grassley & Goodlatte in Letter to NTIA

Senate Judiciary Committee Chairman Chuck Grassley and House Judiciary Committee Chairman Bob Goodlatte on Monday, June 27, 2016, issued a press release (further below) and their letter (embed below) to NTIA concerning the proposed IANA stewardship transition now scheduled to occur upon expiration of the current IANA functions contract on September 30, 2016. Some of the questions posed by Senator Grassley and Congressman Goodlatte:
  • The transfer of government property without Congressional approval raises Constitutional issues and the prospect of illegality. The Government Accountability Office [GAO] is currently conducting a study to determine the United States Government’s property interest in the root zone file – or any other similar component of the Internet that was created and financed by the United States. The Department of Justice’s Office of Legal Counsel (OLC) provides authoritative legal advice to the President and all Executive Branch agencies. Has NTIA requested OLC to analyze this issue concurrently with the GAO? If not, why?
  • Without the proper analysis regarding the United States Government property interest, it is premature to conduct any transition. Will NTIA commit to postpone any transition in the absence of a determination by GAO and OLC relating to this property issue?
  • Did NTIA inform other members of the DNS Interagency Working group of the transition related appropriations provision in the FY2106 Omnibus spending bill?
  • Why did NTIA proceed in utilizing funds in furtherance of the transition in light of the clear prohibition created by the FY2016 Omnibus spending bill?
  • ICANN’s revised bylaws make it clear that the Public Interest Commitments and the registry contracts that contain them are deemed within ICANN’s mission and not subject to a facial ultra vires challenge. However, some members of the multi-stakeholder community have expressed concern that the ICANN Board may not believe that mitigating certain types of DNS abuse, such as IP infringement, is within ICANN’s mandate. How will this proposal require ICANN’s commitment to maintaining and enforcing the Public Interest Commitments, now and in the future?
  • Is NTIA opposed to Congress requiring an affirmative, up-or-down vote for the IANA functions transition to be completed? Why or why not?

Press Release June 27, 2016 (emphasis added): Grassley, Goodlatte: Too Many Unanswered Questions in Plan to Transfer of Internet Authority

Senate Judiciary Committee Chairman Chuck Grassley and House Judiciary Committee Chairman Bob Goodlatte today raised concerns about Obama Administration efforts to relinquish stewardship of key internet functions in light of unanswered legal, constitutional and human rights questions. Other concerns include whether such a transition would jeopardize free expression on the Internet or weaken certain intellectual property protections.

In a letter to the National Telecommunications and Information Administration, the chairmen caution that the transition may violate the Constitution if it transfers government property to a private entity without congressional approval. The chairmen have sought clarification on whether the root zone file and similar components, which were created and financed by the U.S. government, constitute government property. They advise that transferring these components without congressional approval raises constitutional issues and the prospect of illegality.

“Despite NTIA’s intention of ending the United States government role, a number of important issues and concerns exist that indicate that this course is misguided or, at the very least, premature,” the chairmen said in the letter. “As we have stated previously, it is unfortunate that this proposal to eliminate the United States historical stewardship role over key internet management functions has been undertaken not because of technical considerations but for political ones.”

They raised concerns about a potential weakening of free expression and human rights protections by leaving terms such as “human rights” undefined and by increasing the authority of foreign governments, some of which have demonstrated a lack of commitment to human rights and an open internet. The chairmen also called into question the legality of the government’s continued work to pursue the transition, given provisions in recent government funding laws that prohibit taxpayer dollars from being used in furtherance of the transition, including proposal review and assessment.

The chairmen ask NTIA to respond to the questions raised in their letter and reiterate their commitment to ongoing oversight and examination of a potential transition of the internet authority. Full text of the letter follows [embedded below].

In the letter are a series of questions to which Senator Grassley and Congressman Goodlatte have requested a response from Larry Strickling, NTIA, no later than July 22, 2016:

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