GOP Lawmakers Seen Coalescing Around CR Rider Aimed at Delaying IANA Transition

Thune’s interest in extending the funding ban rider and his participation in a Thursday letter urging Commerce and DOJ to reconsider proceeding with the IANA transition are signs of a clear shift within the House and Senate GOP caucuses toward delaying the IANA transition past Oct. 1, lobbyists and others told us. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, House Judiciary Committee Chairman Bob Goodlatte, R-Va., and House Commerce Committee Chairman Fred Upton, R-Mich., also signed the letter (see 1609080076).

Thune’s shift is particularly significant because he had remained largely noncommittal on the switchover throughout much of the process despite being one of the lawmakers who had the closest oversight of ICANN, said Shane Tews of American Enterprise Institute’s Center for Internet, Communications and Technology Policy. Thune is “certainly someone to be reckoned with, so if they want to make the appropriate moves to block funding for the transition or put up other roadblocks, that’s certainly possible,” said Rightside Vice President-Business and Legal Affairs Statton Hammock.

The chairmen’s letter is likely the “final nail in the coffin” burying the chances that the IANA transition would occur Oct. 1, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. “I can’t think of any other way to interpret the letter but as a green light to congressional leaders and the appropriators that if they want to extend the transition freeze, we favor it.” Corwin pointed to growing partisan rhetoric from conservative groups opposing the transition, and Cruz’s planned Wednesday Senate Judiciary Oversight Subcommittee hearing (see 1609020038 and 1609070041) as further signs of a “clearly coordinated effort by a number of parties to lay the ground work” to delay the transition. Corwin opposes a delay. TechFreedom and Heritage Foundation fellows Paul Rosenzweig and Brett Schaefer released a white paper Thursday that proposed a partial switchover that would temporarily extend NTIA's oversight given unanswered “serious concerns” about ICANN’s transition plans.

Other previously noncommittal GOP lawmakers appear to have shifted further toward transition skepticism, including Rep. John Shimkus, R-Ill., who spearheaded the House-passed version of the stalled Domain Openness Through Continued Oversight Matters (DOTCOM) Act (HR-805/S-1551). Shimkus “agrees with” the Commerce and Judiciary committee leaders’ letter, an aide told us. “Given the absence of necessary and meaningful congressional oversight, the administration should reconsider their plan to move forward with the transition.” Shimkus told us in March he had seen progress in ICANN’s planning but oversight of the process needed to continue (see 1603170051).

House Commerce ranking member Frank Pallone, D-N.J., slammed the chairmen’s letter as an “about-face” on the IANA transition that’s “just the latest example of Congressional Republicans caving to the extreme fringes of their party, this time led by” Cruz. House Commerce "worked in a bipartisan manner to ensure congressional oversight by passing” HR-805, Pallone said in a statement Thursday. “This backtracking by Congressional Republicans seriously undermines American credibility in this process, and threatens to embolden the worst actors of foreign governments in their efforts to control the free and open internet as we know it today.”

The Computer & Communications Industry Association is among handover backers committed to continue urging Congress not to delay despite growing backing for an extension of the funding ban rider, said CCIA Public Policy and Regulatory Counsel Bijan Madhani. The chairmen’s letter “makes it sound like opposition on Capitol Hill is insurmountable,” but including an extension of the funding ban rider in the CR “would be controversial and getting action on something like that in the midst of an election year” would be difficult, he said. Internet governance stakeholders “have been lobbying Thune on IANA since the beginning of the transition process” in 2014, Madhani said: Lawmakers who most directly work on internet policy issues “have made up their minds on this but there are others we can still talk to” and influence the debate. “Of course, congressional leaders will have the final say on what’s included in the CR, so it’s important to continue speaking with them as well.”

NTIA and other Department of Commerce officials emphasized during briefings last week with supportive industry stakeholders that they continue to believe the transition should proceed Oct. 1 as planned, but they won’t try to circumvent an extension of the funding ban, said Hammock and Madhani, who participated in the briefings. Officials told stakeholders during a Tuesday conference call they would “appreciate our support for the transition” if they decided to write pro-transition letters to congressional leaders, but NTIA Administrator Larry Strickling said the department wasn’t expressly asking them to lobby in favor of the transition, Hammock told us.

CCIA and other pro-IANA transition stakeholders communicated with members of Congress in the past, so “It’s easy enough for us” to write them again now to counter the “misinformation being promoted by Cruz and others over the past few weeks,” said Madhani, who attended a Wednesday briefing. Hammock said he and other members of the Domain Name Association have drafted a letter to House Speaker Paul Ryan, R-Wis., and House Majority Leader Kevin McCarthy, R-Calif., that argues that foreign governments would see their ability to control the internet reduced if the transition occurs.

It’s unclear how effective pro-transition stakeholders’ letters to Congress will be given the limited time before a CR would come up for a vote. Executives said they wish ICANN in particular had more forcefully countered claims by Cruz and other transition skeptics earlier in the process. ICANN has “been doing a lot of engagement” and raising awareness on the transition, a spokesman emailed. “We have multiple pages and documents dedicated to the topic (including claims of a ‘give away’), as well as a large homepage banner and feature item directing website visitors.”

“It’s unfortunate that this couldn’t have been resolved last year but ICANN has no one to blame but itself” for delaying the transition process via the board’s insistence on unnecessarily hindering the Cross Community Working Group on Enhancing ICANN Accountability's work on changes to ICANN’s accountability mechanisms, Corwin said. “Now we’re in an election year and congressional Republicans have responded to their base.” Facts “are on our side,” said internet and IP lawyer Greg Shatan of McCarter & English. “Whipping up nationalism and jingoism [to oppose the transition] is not new or factual.”

Hammock told us he believes ICANN and NTIA have been forceful in countering transition skeptics’ claims, as have many stakeholders. “We’ve all been very vocal” in supporting the transition but with Cruz and other ardent skeptics, “it’s like talking to a wall,” Hammock said. “You could put the founders of the domain name system in front of Cruz to explain to him what the IANA functions are and he still wouldn’t hear it. What more can you say to people who don’t want to hear the facts?” Private sector stakeholders have been and will continue to be the “best validators” of ICANN’s argument in favor of the transition because “we recognize that a non-balkanized internet is best for our bottom lines and we’re not going into this blindly,” Madhani said.