Obama’s Plan to Surrender Internet Control May Be Unconstitutional

AP Photo/Eric Risberg
AP Photo/Eric Risberg

One of the worst of Barack Obama’s many bad ideas is surrendering control of Internet domains to a shadowy multi-national organization, a move undertaken largely out of embarrassment over Edward Snowden’s exposure of NSA surveillance techniques.

Sensing an opening, foreign interests howled that Obama’s America had proven itself unfit to supervise Internet domain registration, and that’s not the sort of accusation Obama invests a lot of effort in challenging.

A hearty helping of flapdoodle about how the rest of the world had come of age, and it was silly for mean old America to retain control over Internet infrastructure, was served up as President Obama unilaterally declared ICANN (the Internet Corporation for Assigned Names and Numbers) would be taken away from the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA), where it has been situated for about ten years, and given to some as-yet-undefined “global stakeholder community.”

Critics of the move worried that the rest of the world, including much of the Western world, has nothing close to the United States’ ideological commitment to free speech. Even though the old gray mare of free speech ain’t quite what she used to be in these parts, we still have stronger institutional, and Constitutional, resistance to government control of communications than most of the planet.

In the year and a half since ICANN handover was announced, the rest of the world has merrily gone about validating the fears of these critics by censoring and controlling the Internet every way they can. Just a few days ago, the United Nations was expressing its eagerness to turn search engines into censorship engines to battle “cyber violence against women,” which evidently includes spirited disagreement with feminists. Of course, the “global stakeholders” who don’t think women should be allowed to drive cars will want some input into Internet standards, too.

A group of Republican lawmakers is trying to stave off the lunacy of Obama’s Internet surrender by challenging the constitutionality of his actions. In a letter to the Government Accountability Office, they argued that the Internet’s “root zone file” – basically, the map that establishes where everything is located in virtual space – was developed by the U.S. Defense Department with U.S. taxpayer funding, back when the Internet began as a project to establish a military network that could survive a nuclear war. It is, therefore, a “national IT asset,” and has been officially designated as such. In fact, the Commerce Department’s contracts with the corporations that administer Internet names and addresses explicitly identify the root zone file as “property of the U.S. government.”

Under Article IV, Section 3 of the Constitution, only Congress has the authority to transfer control of such government property, so Obama’s attempt to give it away to foreign bodies without congressional consent would be unconstitutional.

The letter notes that GAO has considered the disposition of the root zone file at least once before, in 2000, and concluded it was “unclear whether such a transition would involve a transfer of government property to a private entity.” At that time, GAO decided it could not spare the staff resources to develop a firm legal opinion on the matter, but recommended clarifying the legal status of the root zone file before Congress made any decisions about transferring Internet oversight functions to any third party.

(For the benefit of younger readers, in 2000 the United States government was divided into three co-equal branches, rather than the dictator-with-a-rump-legislature model we’ve grown accustomed to nowadays, so GAO assumed Congress would be the body that decided to hand over Internet domain control.)

The letter further cites previous instances of official documents and pronouncements describing the root zone file as property of the U.S. taxpayers, including President Bill Clinton’s “Internet czar,” Ira Magaziner asserting U.S. ownership of the entire Domain Name System on the grounds that our government “paid for the Internet, the Net was created under its auspices, and most importantly everything [researchers] did was pursuant to government contracts.”

With this history in mind, the letter asks GAO to conduct a review to answer three specific questions:

1.    Would the termination of the NTIA’s contract with ICANN cause Government property, of any kind, to be transferred to ICANN?
2.    Is the authoritative root zone file, or other related or similar materials or information, United States government property?
3.    If so, does the NTIA have the authority to transfer the root zone file or, other related materials or information to a non-federal entity?

The letter is signed by Senate Judiciary Chairman Charles Grassley, presidential candidate and Senator Ted Cruz, House Judiciary Chairman Bob Goodlatte, and former House Oversight chairman Darrell Issa. Although he’s not a congressional representative and thus was not a signatory to the letter, presidential candidate Jeb Bush has also campaigned against Internet handover.

Hopefully the GAO will move quickly, because the Wall Street Journal notes that ICANN handover was supposed to happen this month, but it’s been postponed until September 2016.

That’s because it’s the usual Obama circus of incompetence, secrecy, unexpected consequences, and half-baked “America Last” ideology:

No one has found a way to keep authoritarian regimes at bay without U.S. protection. The administration originally planned to surrender U.S. control this month, but was forced to postpone to September 2016. Last week the Commerce Department admitted there is still no post-U. S. plan for the Internet. Assistant Secretary Lawrence Strickling posted an update online saying there are “many questions still to be answered, both about the substance of the overall plan as well its implementation” and “significant confusion and uncertainty.” He wants a plan “as simple as possible”—but a simple plan would have been crafted by now.

Instead, the process is frustrating the Internet stakeholders it was supposed to protect. “In an extraordinary, almost surreal three-hour teleconference,” an industry blog reported this month, “the working group drawing up plans to make Icann—wannabe masters of the Internet—more open and responsive to the public were treated to a level of Orwellian ‘double speak’ rarely seen outside the British civil service.”

The Icann board says it is willing to be held accountable but rejects the key accountability proposals developed over the past year. Icann doesn’t want to share power or let stakeholders replace its board if it misbehaves or comes under the influence of authoritarian regimes. “It may be prudent to delay the transition” from U.S. control, Icann acknowledges.

No, it would be prudent to tell President Obama and everyone else involved with this loony idea to stop being so “generous” with other peoples’ money and freedom. The authoritarian regimes of the world are positively salivating over a chance to get their claws on Internet domain registration. Every statement they’ve made since President Obama announced this stupid idea should scare the hell out of American Internet users.

Also, as the WSJ observes, absent the control of the U.S. government, ICANN “would go from being a regulated monopoly to being an unregulated monopoly,” which could “boost its coffers at the expense of Internet companies and users.”  Great – we finally found a profiteering corporation Barack Obama doesn’t think the U.S. federal government should micro-manage.

“If the Obama administration wants a simple solution to the Internet-governance mess it created, it should announce that the U.S. will retain its stewardship and support more accountability from Icann to its stakeholders,” the Wall Street Journal suggests. “The open Internet is too important to be abandoned by an administration that thought surrendering the Web would be easy.”

That’s a rather amazing lapse in judgment, isn’t it? Our massive federal government, with its army of highly-paid advisers, approached the surrender of Internet control with all the gravity and forethought of drunk frat boys holding a dorm-room bull session on multiculturalism. “U.S. bad, international bodies super awesome!” appears to be the extent of the thinking that went into this plan. How could anyone, even the sort of callow teenager Obama likes to install in his foreign-policy apparatus, not foresee the eagerness of authoritarian regimes to develop a more heavily-censored Internet? How could they fail to understand that plenty of ideological organizations in the Western world would be happy to go along, provided their dogmas were also taken seriously?

And why the hell didn’t anyone bother to check if it was constitutional for Barack Obama to give away the priceless property of the U.S. taxpayer without congressional approval before this harebrained scheme was announced? That didn’t matter at all to anyone in the Administration, did it? It also didn’t matter to most of the congressional representatives whose body is once again being stripped of its powers by executive fiat, apparently.


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