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Sept. 14 — Sparks flew in a fiery debate Sept. 14 over whether the U.S. government should relinquish oversight of key internet functions.
Sen. Ted Cruz (R.-Texas) and a top-ranking Commerce Department official shouted, argued and interrupted one another during a Senate subcommittee hearing on the plan.
Cruz and Assistant Commerce Secretary Lawrence E. Strickling, who also heads the department's National Telecommunications & Information Administration, wrestled over the NTIA's ability to use fiscal 2016 funds for the plan, as well as whether the transition would trample on free speech online.
Cruz stressed that the handover of oversight to the non-profit Internet Corporation for Assigned Names and Numbers would empower foreign countries to censor free speech over the internet.
“Once the government is out of the picture, First Amendment protections go away,” Cruz said in his opening remarks. “That means that when ICANN escapes from government authority, ICANN escapes from having to worry about the First Amendment, having to worry about protecting your rights or my rights.”
The plan has become a potential sticking point in efforts to pass a continuing resolution to keep the government funded past Sept. 30. Cruz has called for language in the continuing resolution to block the transition, but neither he nor the White House have taken a public hard line on the issue. After the hearing, Cruz declined to tell Bloomberg BNA whether he would filibuster the continuing resolution if such language were not included. Cruz said he was “hopeful that our leadership” would include the language in the bill.
Cruz convened the Sept. 14 Senate Judiciary Oversight, Agency Action, Federal Rights and Federal Courts Subcommittee to investigate what he calls the “possible dangers” of the transition plan. The NTIA intends to let its contract with ICANN expire Oct. 1 (21 ECLR 937, 6/15/16). ICANN performs the technical internet functions and represents a global community of business interests, trade associations, governments and academics.
Strickling said that if the prospective continuing resolution mandates the NTIA to renew its contract with ICANN, the agency will comply. “If that’s what we are told to do, and that passes Congress, we will do that,” Strickling said.
It is unclear what the language urged by Cruz will look like. “We have to see that language, but we'll do what Congress tells us to do,” Strickling told reporters outside the hearing.
Cruz asked Strickling to explain how various administration expenditures made in preparing for the transition plan, including reviewing the ICANN community's proposal, comply with a fiscal year 2016 funding bill that prohibits the NTIA from spending funds on the transition.
Strickling said the NTIA has done nothing to cede oversight of technical internet functions during fiscal year 2016. The provision in the funding bill doesn't address preparatory activities, Strickling said.
“Congress understood that we would be engaged in activities preparing for the activity, but those themselves don’t relinquish any responsibility,” for overseeing the internet functions, Strickling said. Congress had directed the NTIA to conduct a review of the proposal, he said.
Cruz called Strickling's response a “tortured interpretation” of the statutory language.
Strickling also argued against Cruz's concerns that the transition would empower foreign governments such as China and Russia to censor online content.
“You're not positing a realistic scenario,” Strickling said.
Strickling said that the NTIA has no role in deciding who gets to operate top-level internet domains such as .web and .inc, nor in determining what content will appear on those sites. He also said that ICANN would never be involved in the takedown of a domain's website.
“There will be no First Amendment protection from the United States that would extend in any way to protect the operation of the domain name system,” Strickling said.
ICANN President and CEO and President Göran Marby testified that neither ICANN nor the internet functions have anything to do with content or freedom of expression. “ICANN has nothing to do with protecting free speech on the internet,” Marby said. “We do not and cannot impact how sovereign states censor speech within their borders.”
Cruz also pressed Marby about whether ICANN might move from California to another country after the transition. He asked Marby whether ICANN's bylaws might be changed in the future to allow for such a move.
Marby told Cruz that ICANN can't change its own bylaws but that the ICANN community has the ability to do so.
“Can you tell this committee today that there is zero possibility ICANN can move abroad?” Cruz asked.
Marby said it would be easier to start an entirely new ICANN than to move the existing organization.
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