Hill Republicans Crafting Final CR Language to Stop Imminent IANA Transition

“I would expect” the transition funding rider extension language to be included in the short-term CR, said Thune, a Senate leadership member. “It’s a question of they’re trying to work out what that would look like, what would be affected in terms of slowing, putting the brakes on this. I don’t think anybody feels we’re ready yet for that transition to take place. So the question is how do you facilitate, how do you make that happen. I think they’re trying to work with our committee, the appropriators, the leadership, in this negotiation over language that might be included in the CR that would address that issue.”

Republican Senate leadership discussed the IANA provision Monday at a leadership meeting, Thune said. Senators are coordinating with House lawmakers “on the leadership level” and the House “is in the same spot,” with “many of the same concerns” as senators, Thune said. Democrats are “probably not so” receptive, Thune said. “I think there are some who are interested and have some of the same concerns that our members do. But I’m sure they’re probably getting a lot of pressure from the administration because the administration’s pushing hard to get this done.” He cited the CR language possibility last week and joined other Republicans in both chambers in urging Commerce and DOJ to reconsider delaying the switchover (see 1609090062).

Thune acknowledged two camps of Republican lawmakers, noting the role of Sen. Ted Cruz, R-Texas, in opposing the transition, but framed their short-term goals as aligned for now, without any conflict. “Right now, we all want to make sure that on Sept. 30, that that transition doesn’t occur because we don’t think it’s ready yet,” he said. “Some of our members want to prevent this completely from happening, and there are others who would like to see it slowed and give us a chance to take a look at some of the issues that have been raised, which are legitimate issues about that transition.”

Senate Majority Leader Mitch McConnell, R-Ky., filed cloture Monday on a vehicle for the short-term CR -- which would fund the government through Dec. 9 -- and said he would like to move the funding bill this week. “Based on past experience, I don’t think we probably get there this week,” Thune said. “I think this probably spills into next week. But there’s progress being made, and there are half a dozen outstanding issues that have to be addressed, one of which is the ICANN [transition].” Senators likely will leave Washington once they pass the CR, he said. House Speaker Paul Ryan, R-Wis., expects a “low-drama September,” House Communications Subcommittee Chairman Greg Walden, R-Ore., told reporters Tuesday of the short-term CR. “I think the speaker has told the president that we’re not going to do some big gigantic omnibus,” Walden added of the process for later in the year, citing a House GOP desire for “smaller packages” of appropriations measures.

GAO Reports

A second GAO report Tuesday clears the way for Congress to use the CR to extend the transition funding ban rider. The rider “would apply to amounts appropriated by a continuing resolution” for FY 2017, the GAO said in the report. A CR “would make appropriations to continue the activities funded in the [FY 2016 budget] while incorporating the terms and conditions that applied to those appropriations” in FY 2016. “NTIA could not use amounts appropriated under a continuing resolution to relinquish its responsibilities with respect to the Internet domain name system,” GAO said.

Stakeholders eagerly anticipated GAO's transition property issue report given its potential impact on the debate. Several previously acknowledged the report and the U.S. Court of Appeals for the D.C. Circuit's review of the Weinstein v. Iran country code top-level domains case would fully resolve the longstanding debate over whether TLDs are property (see 1605310064).

It's “unlikely that either the authoritative root zone file … or the Internet domain name system as a whole” is federal property under U.S. law, GAO said in its transition property issue report. “We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.” The federal government “does have certain rights under a series of contracts and agreements related to the domain name system and the IANA functions, and has title to limited intellectual and tangible property related to performance of these functions, all of which constitute” federal property, GAO said: Almost all of that property “will be retained and not transferred or otherwise disposed of in connection with the proposed transition.”

NTIA's planned turnover of its oversight of the IANA functions is unlikely to violate the Constitution but “would result in NTIA surrendering the role that the U.S. Government has played in some form for nearly 50 years,” the GAO said. “Today, NTIA exercises both broad contractual oversight and specific contractual control regarding the IANA functions and domain name system, a role described by the global multistakeholder community and NTIA itself as providing 'stewardship,' an 'accountability backstop,' and a 'safety net.'” Congress “may wish to take steps to address the broader issues raised by the transition if it believes there should continue to be direct U.S. oversight and control,” GAO said. “This opinion expresses no views on the merits of the proposed transition.”

Debate Ahead

GAO was “impressively clear” that there's “no real property interest involved in the transition that would inhibit” it from proceeding, said Wiley Rein telecom and internet governance lawyer David Gross. Though the property issue has been one of several that transition skeptics evoked, the report “can have some influence on the current debate by taking this particular argument off the table,” he said. “I'd imagine that NTIA is happy.”

NTIA is “pleased that GAO concluded that the transition does not involve a transfer of U.S. government property requiring Congressional approval,” said Administrator Larry Strickling in a statement.

The report clarifies the property issue but “I'm not sure it's going to be the last word,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. “Others might look at the facts presented in the report and come to a different conclusion.” Impact on the transition debate is likely stunted by its release so close to both the Senate Judiciary Oversight hearing and the deadline for Congress to decide whether it will delay the transition via the short-term CR or by other means, Corwin said. “That this was released so late might create a suspicion that the GAO held it back so members of Congress wouldn't have time to properly review it.” Cruz; House Judiciary Committee Chairman Bob Goodlatte, R-Va.; Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa; and House IP Subcommittee Chairman Darrell Issa, R-Calif., jointly requested the review in September 2015 (see 1509280056).

GAO released both reports a day before the Senate Judiciary Oversight Subcommittee is to hold a hearing on transition-related concerns (see 1609020038 and 1609070041). The subcommittee confirmed Tuesday that Strickling and ICANN CEO Göran Marby will be among witnesses. Witnesses on a second panel are Neustar Chief Privacy Officer Becky Burr, NetChoice Executive Director Steve DelBianco, Karsten Manufacturing Corporate Counsel Dawn Grove, LegitScript CEO John Horton, Red Branch Consulting founder Paul Rosenzweig, TechFreedom President Berin Szoka and ACT | The App Association President Jonathan Zuck.

ICANN believes the Senate Judiciary Oversight hearing and other meetings on the Hill “are important conversations and are opportunities to clarify” misconceptions about the IANA transition, said Senior Adviser to the President-Global Strategy Theresa Swinehart in an interview. Stakeholders' support for the transition in recent letters to Congress and the Senate Judiciary Oversight hearing “are the best way to demonstrate that our transition proposals are responsive to ensuring checks and balances in the system,” she said. ICANN remains “on track to execute” the ICANN community's transition-related plans and will be ready to conduct the transition as planned Oct. 1, but “we'll need to address” contingency plans for continuing to operate under NTIA oversight if Congress passes a CR with the funding ban extension, Swinehart said. That contingency plan will be “based on the situation at hand,” she said.