Senate Appropriators Add IANA Transition Language as House Requests GAO Study and Civil Society Groups Oppose Shimkus Amendment

The Senate Appropriations Committee just reported out on June 5th its version of the Commerce-Justice-State Departments Appropriations bill for FY 15. In the course of its deliberations it added a consensus amendment on the IANA transition offered by Sen. Mike Johanns (R-NE). The amendment reads:

  1. Amendment proposed by Senator Johanns

On page 24 of the report, in the paragraph beginning with “Internet”, strike the sentence beginning with “While” and replace with:

“While NTIA has stated that it will not accept a proposal that includes government-led or intergovernmental control over ICANN the Committee directs NTIA to conduct a thorough review and analysis of any proposed transition of the IANA contract. This review shall ensure that ICANN has in place a NTIA approved multi-stakeholder oversight plan that is insulated from foreign government and inter-governmental control. Further, the Committee directs NTIA to report quarterly to the Committee on all aspects of the privatization process and further directs NTIA to inform the Committee, as well as the Committee on Commerce, Science, and Transportation, not less than 7 days in advance of any decision with respect to a successor contract.”

In addition to that statutory language, the Committee report on the bill, which creates its “legislative history”, contains this relevant passage:

Internet Corporation for Assigned Names and Numbers [ICANN].-The Committee remains concerned that the Department of Commerce, through NTIA, has not been a strong advocate for American companies and consumers and urges greater participation and advocacy within the Governmental Advisory Committee [GAC] and any other mechanisms within ICANN in which NTIA is a participant. The Committee strongly encourages NTIA to be an active supporter for the interests of the Nation within ICANN and to ensure that the principles of accountability, transparency, security, and stability of the Internet are maintained for consumers, business, and the Government. The Committee awaits the past due report on NTIA’s plans for greater involvement in the GAC and the efforts it is undertaking to protect U.S. consumers, companies, and intellectual property.

Parsing the amendment’s language, the requirement that NTIA conduct a thorough review and analysis of any proposed IANA transition plan amounts to telling it to do its job properly; implicit in this requirement is that the analysis be shared with Congress. The requirement that the review ensures a multi-stakeholder oversight plan links the IANA transition to the enhanced ICANN accountability that many groups have already said must accompany and be implemented simultaneously with any IANA transition plan. The requirement for quarterly NTIA reports to Congress on all aspects of the “privatization process” reinforces that it must assure continued private sector leadership, and that Congress does not want to be kept guessing as to where things stand. As for the requirement that Congress receive at least seven days’ advance notice of any NTIA decision on a successor IANA contract, that seems too brief an interval for meaningful Congressional review – but this amendment will not likely be the final form of any language sent by Congress to the President.

As for the accompanying Report language, the fact that the Committee is dissatisfied with NTIA’s advocacy for US interests within the GAC raises the implicit question of whether the IANA transition itself is in the national interest. And the inclusion of a note of displeasure regarding “the past due report on NTIA’s plans” indicates impatience with NTIA’s responsiveness to Congressional directives.

The House-passed counterpart to this CSJ Appropriations bill contains the Duffy Amendment that would deprive NTIA of any funds to carry out the IANA transition. While that flat prohibition has close to zero chance of being accepted by the Senate, the inclusion of this IANA-related language significantly enhances the chances for compromise language being worked out during future negotiations to reconcile the bills. The middle ground could well be a modified version of the Shimkus Amendment (incorporating the full DOTCOM Act) that was attached to the Defense Authorization Act in the House, as it is now clear that both sides of Capitol Hill want some degree of assurance that they will receive updated reports on the progress of IANA transition deliberations as well as some opportunity to review a succession plan prior to its implementation. There also remains a strong possibility that the Senate Commerce Committee will hold an IANA oversight hearing prior to full Senate consideration of this CSJ bill, and if that happens it could provide new fodder for related floor amendments.

In a related development, also on June 5th a group of six House Republicans, including the Chairman and Vice-Chair of the Energy and Commerce Committee, sent a letter to the Governmental Accountability Office “requesting an examination of the Obama administration’s recent proposal to transition Internet oversight to the global multi-stakeholder community”. The letter asks GAO to address such issues as potential national security implications and other possible risks of the IANA transition, how to assure against a future multilateral ICANN takeover, future enforcement and enhancement of the Affirmation of Commitments (AOC), and useful evaluation criteria beyond those set by the NTIA. This request implements the study portion of the Shimkus Amendment but lays aside its one year delay. By taking this action the way may be better cleared for a House-Senate compromise agreement that assures a meaningful Congressional oversight and review role on the transition.

Meanwhile, on June 3rd a group of seven civil society organizations sent a letter to Senate Majority Leader Harry Reid as well as the leaders of key Senate Committees expressing their opposition to the Shimkus Amendment, which would delay adoption of any IANA transition plan forwarded by ICANN for up to one year while the GAO analyzed it.

The organizations base their opposition in a belief that:

[T]he DOTCOM Act will give additional ammunition to foreign governments and stakeholders who oppose Internet freedom, bolstering their argument for an overhaul of the current Internet governance system to facilitate greater control by non-democratic governments or international organizations… Passage of the DOTCOM Act would unnecessarily interfere with the announced transition process, which is still in development through an open consultation convened by ICANN. Further, it would damage the reputation of the United States as a champion of multi-stakeholder Internet governance and contradict previous bipartisan statements of Congressional support for the multi-stakeholder governance model.

The letter’s final operative paragraph reads:

It is critical that the IANA transition proposal development process be fair and transparent, and we welcome Congressional interest and participation as an equal stakeholder in the process. However, efforts to interfere with or delay this transition process, or require the Congressional approval beyond the criteria suggested by NTIA, will neither achieve the goals of the bill nor reflect Congress’s previously stated position on Internet governance. We therefore strongly urge the Senate to oppose the Shimkus Amendment #6 to the FY15 NDAA and other efforts to block this transfer and to show support for an Internet that is free, open, and guided by global, multi-stakeholder governance principles.

While these views are sincere and all the signatory groups do good work on behalf of Internet freedom and privacy, we doubt that Russia, China, Iran and other nations which already restrict their own citizens’ Internet freedom need any new incentives or arguments to push for multilateral control of the DNS.

And there is a bit of a mixed message in welcoming Congress as an “equal stakeholder” in the transition process while essentially asking it to trust in and defer to NTIA’s determinations on a decision that, once made, cannot be redone.

It’s doubtful that the Senate will accept the Shimkus Amendment/DOTCOM Act in the form sent over from the House. But this new Senate Appropriations bill and House GAO study request are the latest indicators of evolving bipartisan and bicameral interest in the IANA transition — and that could well lead to the negotiation of compromise language adopted on a bill funding three of the most important Executive Branch agencies that assures a truly equal role for Congress.

 

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