Thought Piece by Stephen Heins

[Given the fact that the White House and the FCC has been so adamant about “Net Neutrality,” it is intellectually unimaginable that they would even consider throwing ICANN to international wolves of authoritarians and their control.  Steve]

Congress Can Save the Internet

The White House will end U.S. oversight at month’s end, unless lawmakers step in.

By L. Gordon Crovitz ,Sept. 11, 2016 5:53 p.m. ET, Wall Street Journal

President Obama wants this to be the last month of an open, uncensored internet guaranteed by the U.S. government. His plan to end American stewardship would hand new power to authoritarian governments offended by the internet as we know it.

The good news is it appears congressional leaders have agreed to rescue the internet in time to prevent the Sept. 30 expiration of U.S. oversight. Sen. Ted Cruz, who has pushed hard against the plan since it was announced two years ago, told me last week he’s “cautiously optimistic” legislators will block it through a rider to the federal budget: “The basic proposition of keeping the internet free has united Republicans across the spectrum and should also unite Democrats with Republicans.”

Top Senate and House Republicans have signaled they will ensure U.S. oversight continues to protect the Internet Corporation for Assigned Names and Numbers, or Icann, and its stakeholders. The leaders of the four congressional committees that oversee the internet—Sen. John Thune and Rep. Fred Upton (Commerce) and Sen. Chuck Grassley and Rep. Bob Goodlatte (Judiciary)—sent a detailed letter last week to Commerce Secretary Penny Pritzker and Attorney General Loretta Lynch: “This irreversible decision could result in a less transparent and accountable internet governance regime or provide an opportunity for an enhanced role for authoritarian nation-states.” They focused on several fatal problems with the Obama plan:

Several countries are committed to ending Icann’s status as a U.S. legal entity, which would invalidate its legal protections. “The matter of jurisdiction alone raises questions,” the legislators wrote. “These critically important jurisdictional issues cannot wait for resolution after the transition occurs.”

Icann’s monopoly over the root zone of domain names earns it hundreds of millions of dollars in annual revenues. Icann should not become an unregulated monopoly. “We have serious concerns about the ability to ensure that Icann would follow its own bylaws” absent oversight, the lawmakers wrote. An unregulated monopoly is more dangerous than a monopoly regulated by the U.S.

The legislators also rejected the claim of Icann’s general counsel, in a letter in today’s Wall Street Journal, that Icann never had an antitrust exemption. They cited a federal appeals court decision in 2000 finding antitrust immunity arising from operating the root zone under the U.S. government contract. That’s important because authoritarian governments would argue Icann could only regain antitrust exemption by joining the United Nations or another government-led organization. The lawmakers found it “troubling” that Obama administration lawyers failed even to ask what happens to Icann’s antitrust status if the U.S. contract ends.

The Constitution says Congress must approve the sale of government property. The Icann contract is government property worth billions of dollars, yet the Obama administration has ignored the requirement to seek congressional approval. “Absent clear legal certainty, moving forward with the transition could have devastating consequences for internet users,” the legislators write, because litigation would create questions about who has authority to award and manage internet addresses.

Each of these objections is enough to retain U.S. oversight, but the broader point is that the internet ain’t broke and doesn’t need fixing. Icann’s stakeholders—developers, engineers, network operators and entrepreneurs—are free to operate an open internet because U.S. protection prevents Moscow, Beijing, Tehran and other authoritarian regimes from meddling. The Obama administration may not be comfortable with American exceptionalism, but the internet fosters free speech and innovation because it was built in the image of the U.S.

The administration has been reduced to arguing that having been promised an end to U.S. oversight, other countries will now be upset if this doesn’t happen. Too bad. Why make authoritarians happy by giving them the power to censor websites globally, including in the U.S.?

Sen. Cruz observed it was interesting that the Obama plan “doesn’t have much in the way of outspoken Democratic support,” though the Democratic platform supports the Obama handover, which the Republican platform opposes. It would be fascinating if internet freedom became an issue in the presidential election.

One of the first people to object to the Obama plan was Bill Clinton, whose administration created the system of U.S. stewardship of the internet in the 1990s. Soon after the plan was announced in 2014, Mr. Clinton warned: “A lot of people who have been trying to take this authority away from the U.S. want to do it for the sole purpose of cracking down on Internet freedom and limiting it and having governments protect their backsides instead of empower their people.”

What does Mrs. Clinton think?