Sen. Ted Cruz, R-Texas, filed a proposed amendment Tuesday that would seek to attach language from an anti-Internet Assigned Numbers Authority transition bill to the National Defense Authorization Act for FY 2017 (S-2943). The proposed language, which Cruz began circulating last month in the form of the draft Protecting Internet Freedom Act (see 1605240067 and 1606020056), would prohibit NTIA from allowing the IANA transition to occur unless Congress “expressly grants” the NTIA administrator the authority to allow it to proceed. Cruz's bill also would require NTIA to certify within 60 days of enactment that the U.S. government has “secured sole ownership” of the .gov and .mil top-level domains and that the government has a contract with ICANN that grants the U.S. “exclusive control and use of those domains in perpetuity.”
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
The status of federal online sales tax legislation has remained largely unchanged in recent months despite efforts to seek a legislative compromise and a February promise by Senate Majority Leader Mitch McConnell, R-Ky., to allow Senate consideration of the controversial Marketplace Fairness Act this year, said online sale tax supporters and opponents in interviews Friday. McConnell promised to allow a Senate vote on S-698 as part of a deal to prevent a floor fight over the inclusion of the Permanent Internet Tax Freedom Act’s language in the now-enacted Trade Facilitation and Trade Enforcement Act (see 1602100061 and 1602110056). On the House side, Judiciary Committee Chairman Bob Goodlatte, R-Va., has been continuing to work on a draft alternative “origin sourcing” bill that would tax online retailers based on the sales tax in their location but let states redistribute those taxes based on the location of the purchaser, an e-commerce lobbyist told us.
Sen. Ted Cruz, R-Texas, is aiming to introduce his Protecting Internet Freedom Act legislation when the Senate returns next week from its Memorial Day recess, an internet lobbyist told us. A draft version of the bill that began circulating last week, as expected (see 1605240067), would prohibit NTIA from allowing the Internet Assigned Numbers Authority transition to occur unless Congress “expressly grants” the NTIA administrator the authority to allow the transition to proceed. Cruz’s bill also would require NTIA to certify within 60 days of the bill’s enactment that the U.S. government has “secured sole ownership” of the .gov and .mil top-level domains (TLDs) and that the government has a contract with ICANN that grants the U.S. “exclusive control and use of those domains in perpetuity.” The Protecting Internet Freedom Act “is our last chance to save” internet freedom, Cruz’s staff said in a background memo circulating with the draft. The U.S. “cannot allow authoritarian regimes to increase their influence over the core operating functions” of the internet, the memo said. Staffers for several senators apparently have expressed interest in Cruz’s bill, but decisions about co-sponsoring the bill aren’t likely until next week, an internet lobbyist told us. Cruz’s bill doesn’t appear to be directly related to the Securing America’s Internet Domains Act (HR-5329), which Rep. Mike Kelly, R-Pa., filed last week, the lobbyist said. HR-5329 would require NTIA to extend its current contract to administer the IANA functions through Sept. 30, 2019, unless the agency can certify it secured the U.S. government's “sole ownership” of the .gov and .mil TLDs (see 1605260036). A Cruz spokesman confirmed the details of the Protecting Internet Freedom Act and the background memo, but didn’t comment on Cruz’s timeline for filing the bill or the level of support the bill has gotten from other senators. During a hearing last week, several members of the Senate Commerce Committee expressed an interest in delaying the IANA transition via an extension of NTIA’s current contract with ICANN to administer the IANA functions. It’s unclear whether interest in delaying the IANA transition will lead to congressional action, but there doesn’t initially appear there’s much momentum for scuttling the transition entirely, the internet lobbyist said.
The Intercollegiate Broadcasting System (IBS) and independent musician George Johnson separately confirmed to us Wednesday that they petitioned the U.S. Court of Appeals for the D.C. Circuit to review the Copyright Royalty Board's 2016-20 noninteractive webcasting rate-setting ruling. SoundExchange also filed an appeal of the CRB’s ruling, which several music industry lawyers said faces difficult odds at the D.C. Circuit (see 1606010065). CRB published a final version of its 2016-2020 noninteractive webcasting royalty rates in early May, setting the rates at 0.17 cent per performance on nonsubscription services and 0.22 cent per performance on subscription services (see 1605020058). IBS disputed the current Web IV ruling saying it's “in excess of Constitutional and statutory authority, is in violation of the public's Constitutional and statutory rights and interests, is in violation of the Copyright Act, as amended, is not supported by the record, is arbitrary and capricious, and deprives petitioner of due process.” Johnson said he's seeking a D.C. Circuit review on a pro se, on one's own behalf, basis. Neither the IBS nor Johnson petitions had been entered into the Pacer database and hadn’t received case numbers at our deadline.
SoundExchange confirmed it petitioned the U.S. Court of Appeals for the D.C. Circuit to review the Copyright Royalty Board's 2016-20 noninteractive webcasting rate-setting (Web IV) ruling, as expected (see 1605050055). At least two other parties to the Web IV proceeding also expressed an interest in appealing the CRB's rate-setting ruling, said Wilkinson Barker broadcast attorney David Oxenford, who represented NAB and the Educational Media Foundation in the proceeding. CRB published a final version of its 2016-2020 noninteractive webcasting royalty rates May 2, starting a 30-day clock for parties proceeding to appeal to the D.C. Circuit. CRB set the noninteractive webcasting royalty rates at 0.17 cent per performance on nonsubscription services and 0.22 cent per performance on subscription services (see 1605020058).
Pending decisions in U.S. government examinations on the legal definition of top-level domains are unlikely to fully resolve the longstanding debate over whether TLDs are property, said domain names industry executives and lawyers in interviews. The U.S. Court of Appeals for the D.C. Circuit is considering the Weinstein v. Iran case. It centers on arguments for and against identifying country code top-level domains (ccTLDs) as attachable property for garnishment purposes (see 1601200063 and 1601210058). GAO is reviewing whether NTIA’s transfer of oversight of the Internet Assigned Numbers Authority (IANA) functions, including the Department of Defense-created root zone file, constitutes a transfer of government property that would require congressional approval of the transition (see 1509280056).
It's uncertain what factors Oracle will base its appeal of a San Francisco federal jury's ruling Thursday in favor of Google in the second Oracle v. Google trial, but Oracle has several options, IP lawyers said in interviews. The U.S. District Court jury said Google's use of the coding and names contained in Oracle's Java application programming interface (API) technology in its Android mobile operating system qualifies as a transformative use under the fair use doctrine. Oracle vowed to appeal the verdict (see 1605260067). The tech sector hailed the federal jury's verdict as an important win for fair use.
Copyright Office officials’ strongest focus during a San Francisco roundtable Wednesday centered on how best to streamline the office’s triennial review process for considering renewals of exemptions to Digital Millennium Copyright Act Section 1201’s ban on circumvention of technological protection measures, participants said in interviews. CO officials showed an interest during the meeting on the Section 1201 study in other ways to improve internal office processes related to the section’s rules on anti-circumvention exemptions, but officials appeared to home in on the renewals process, participants told us. CO officials also focused on the Section 1201 exemptions renewal process during a similar meeting last week in Washington, D.C., leading those at that meeting to predict the CO’s study will include recommendations for streamlining the renewal process (see 1605200069).
The U.S. and EU took divergent cybersecurity policy approaches in the almost three years since former NSA contractor Edward Snowden began leaking information about controversial U.S. surveillance programs, but they continue to maintain a strong cybersecurity partnership, said Andrea Glorioso, delegation of the EU to the U.S. counselor-digital economy/cyber. Glorioso and others at Wednesday's Georgetown University Law Center event said cybersecurity policy differences between the EU and the U.S. are reflected in the U.S. 2015 Cybersecurity Act and the EU 2016 General Data Protection Regulation (GDPR).
Four other Senate Commerce Committee Republicans signed on to a letter sent Tuesday by Sen. Marco Rubio, R-Fla., that urged NTIA Administrator Larry Strickling to extend the agency's contract with ICANN to perform the Internet Assigned Numbers Authority functions for an unspecified period. The four who also signed on to the letter were Sens. Roy Blunt, R-Mo.; Dean Heller, R-Nev.; Ron Johnson, R-Wis.; and Dan Sullivan, R-Alaska. The letter, as expected (see 1605180063), said a delay of the IANA transition precipitated by an extension of NTIA's contract would “ensure that the many changes in the transition proposal are implemented, operate as envisioned, and do not contain unforeseen problems.” The new governance model included in ICANN's IANA transition-related plans “is unproven and should also undergo parallel testing,” Rubio and the other senators said in the letter. Blunt, Johnson, Rubio and Sullivan signaled interest in proposals for a delay of the transition during a Senate Commerce hearing Tuesday (see 1605240067). IANA transition supporters continued to argue against delaying the transition, after the hearing. The Internet Society believes “there's no reason to call for a delay in the transition,” Regional Bureau Director-North America Mark Buell said in an interview. “We've nearly reached the point where we have proposals to get us to the best place we can be on the transition.” Buell countered arguments that further fragmentation of the Internet will occur regardless of whether the transition occurs. “I think the real risk for fragmentation would be if the transition is delayed or doesn't go through at all,” he said. “If we delay, we would remove a lot of stakeholders' faith in the global Internet community. A delay won't do the Internet any favors.” Governments “that want to see the transition fail will use the extension and continued US government involvement as justification to promote further intergovernmental control over the internet,” said Center for Democracy and Technology Director-Global Internet Policy and Human Rights Project Matthew Shears in a blog post. “The longer the US government retains its role, the more the voices against multistakeholder approaches and an open internet will grow.”