By Robert Romano
Texas Insider Report: WASHINGTON D.C. It is the critical choke point in terms of directing Internet traffic in a meaningful authoritative manner. And the U.S. which has 
administered this system at various levels for 45 years is simply giving it away. Apparently for nothing. We would add without any vote in Congress but well get to that in a moment. This is a big deal.
On March 14 the Commerce Departments National Telecommunications & Information Administration (NTIA) announced its plan is to transition the current role played by NTIA in the coordination of the Internets domain name system (DNS)" to global stakeholders."
The Commerce Departments NTIA issued a press release stating its intent to transition key Internet domain name functions to the global multistakeholder community" from its current contractor the Internet Corporation for Assigned Names and Numbers (ICANN).
Administering the DNS is the key function that associates easy-to-remember domain names to numerical Internet Protocol (IP) addresses the Internet Assigned Numbers Authority (IANA) an essential component to making the Internet work.
Again ... It is the critical choke point for directing Internet traffic in a meaningful authoritative manner.
- The U.S. has administered this system at various levels for 45 years.
- It is now simply giving it away.
- Apparently for nothing.
A Government Accountability Office (GAO) report from 2000 is highly informative on this topic. It states that DNS started at the Department of Defense in 1969 as ARPANET before being superseded by the National Science Foundation as NSFNET in 1990. In 1992 the Foundation was authorized by Congress to allow commercial activity on the Internet enabling it to enter into a contract shortly thereafter with Network Solutions to sell domain names on a for-profit basis.
Then in 1997 then-President Bill Clinton issued a directive calling for the Commerce Department to support efforts to make the governance of the domain names system private and competitive." The Commerce Departments NTIA then took over stewardship DNS.
At the same time Congress defunded the National Science Foundations administration the system in 1998 in a rider to the Foundations appropriations:
That none of the funds appropriated or otherwise made available to the National Science Foundation in this or any prior Act may be obligated or expended by the National Science Foundation to enter into or extend a grant contract or cooperative agreement for the support of administering the domain name and numbering system of the Internet after September 30 1998."
With the Foundation out of the way NTIA issued a policy stating it was ready to enter into a contract with a new non-profit corporation to facilitate the new online marketplace for domains.
Dr. Jon Postel the director of the Computer Networks Division of the Information Sciences Institute at the University of Southern California who helped develop ARPANET and then administered the IANA in 1998 founded the Internet Corporation for Assigned Names and Numbers (ICANN).
Shortly after Postels death in 1998 ICANN was awarded the government contract by NTIA to handle DNS management. During that time groups like the Electronic Frontier Foundation (EFF) criticized the transfer of DNS to a private foundation like ICANN.
Internet administration has always guaranteed free speech and due process since it has been done by U.S. Government contractors who are required to follow the U.S. Constitution. If the New IANA moves Internet administration out from under the U.S. Government as there is general agreement to do the public will lose these guarantees" Shari Steele Staff Counsel at EFF warned at the time.Although Steele added unless they are explicitly written into the charter of the New IANA" that is not particularly material in the current context. Nor would it have been then. Whether or not it is in their charters private communications companies and foundations are not legally obliged to protect First Amendment rights. Only the government is. Leaving this nuance aside Steele and EFF were right then on the overall point of who the First Amendment applies to and it holds true today as the Department of Commerce seeks to transition IANA governance to some new as of yet unnamed international body.
All ICANN is is a government contractor per NTIAs website: The Internet Corporation for Assigned Names and Numbers (ICANN) currently performs the IANA functions on behalf of the United States Government through a contract with NTIA." If an issue of censorship were to ever arise under the federal governments administration of DNS even via government contractors like ICANN there would be a clear recourse via the First Amendment protections of freedom of speech and of the press via federal courts.
Whereas under the current transition plan no such constitutional protections will be afforded to anyone. Why? Because authority of DNS is being transferred from the one entity bound by the First Amendment the federal government to who exactly?
Is it a group of private foundations including the Internet Society ICANN the Internet Architecture Board the Internet Engineering Task Force the World Wide Web Consortium and the Number Resource Organization? None of those are bound by the First Amendment.
Or 1net.org the new discussion platform" developed by these foundations to develop the transition plan away from federal government administration of DNS? In October 2013 these foundations agreed on the 
need for globalization of ICANN and IANA functions" in the Montevideo Statement on the Future of Internet Cooperation. 1net.org is not bound by the First Amendment.
Almost two months before the Commerce Department had even issued its press statement ICANN executive director Fadi Chehade called for turning over U.S. control of the Internet in an exclusive interview with CNET.
This oversight is not sustainable any longer and therefore we should work with the US to hand over its superb stewardship. We should all be thankful for the stewardship of the US government. Its worked marvelously well. Now it is important for the US government to appreciate its time to have that stewardship headed to the world community through the ICANNs multistakeholder model" said Chehade.In fact there was already a plan in place Chehade added: What were going to do at a meeting on April 23 in Sao Paulo is propose an interconnected governance ecosystem. Were creating a highly distributed but also structured way to address the issues by establishing new governance networks. Well make sure these are well coordinated at the global regional and national levels. Its like a 21st century governance system for the
Internet."
That meeting dubbed the The Global Multistakeholder Meeting on the Future of Internet Governance" in Sao Paulo Brazil will convene to craft Internet governance principles and propose a roadmap for the further evolution of the Internet governance ecosystem."
Four committees will be convened at the meeting including the critical High-Level Multistakeholder Committee that will be responsible for overseeing the overall strategy of the meeting and fostering the involvement of the international community."
Of the 27 representatives only three will be represented by the private sector. 13 will be governments. 2 will be the United Nations including Hamadoun Tour Secretary General of the International Telecommunication Union (ITU). The rest will be the private Internet foundations listed above academia and civil society whoever they represent. This committee and any proposal they develop will not be bound by the First Amendment.
So in this process three key objections emerge:
First an international organization however constituted whether via the United Nations or a consortium of private foundations to handle DNS will offer zero First Amendment protection to anybody in the event of 
censorship.
Where can free speech violations be taken to? The World Trade Organization? The United Nations? Who? Certainly not federal court.
This is extraordinarily dangerous akin to selling the U.S. nuclear arsenal to a third party.
Second DNS being handled by a dozen governments the UN and a handful of foundations is not what the 1997 presidential directive authorized the Department of Commerce to do in supporting efforts to make the governance of the domain names system private and competitive" and not what ICANNs memorandum of understanding with NTIA states that the purpose is to foster the development of a private sector management system" for DNS.
Finally the Obama Administration cannot give away the IANA and control over DNS to anybody it can only contract that service out and then only under very limited circumstances per the U.S. code.
The Commerce Department still retains the right to terminate ICANNs Internet Assigned Numbers Authority (IANA) functions contract and to replace ICANN if necessary. When ICANNs contract with the federal government expires in 2015 as a government contractor it will no longer possess the authority to administer DNS or IANA. That will remain with the federal government.
Otherwise it takes a vote of Congress which has plenary power over regulating interstate commerce to authorize the transfer of control over DNS to any entity the Commerce Departments 1998 power grab notwithstanding. Congress has already legislated in this area first in authorizing the National Science Foundation to allow commercial activity on the Internet and then in defunding the Foundations mandate.
Therefore it is up to Congress to reassert its power to regulate in this area before Obama gives away the Internet to the international community at the expense of future generations vital freedom of expression.
Robert Romano is the Senior Editor of Americans for Limited Government.
