The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There are, as I've written before, many reasons to be concerned about the government's proposed "IANA transition"—the plan to terminate the contracts between the U.S. government (acting through the NTIA, the National Telecommunications and Information Administration, a division of the Commerce Department) and the "Internet Corporation for Assigned Names and Numbers" (ICANN) under which ICANN has been managing (subject to U.S. oversight) the Internet's critical system of interlocking databases that constitute the Internet's domain name system (DNS).
[I posted a summary on the VC here, a detailed analysis of what the IANA transition is all about and why it matters here, and, most recently, a description of some of the most important issues regarding ICANN's post-transition "accountability" that need to be resolved here].
Last week, in a letter to the Government Accountability Office, four members of Congress—Sens. Charles Grassley and Ted Cruz, and Reps. Bob Goodlatte and Darrell Issa, on behalf of the Senate and House Judiciary Committees, respectively—raised "questions about NTIA's authority to transfer possession and control of critical components of the Internet's infrastructure to a third party":
Under Article IV, Section 3 of the Constitution, Congress has the exclusive power 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States'. One question arising from the decision to transfer its Internet oversight functions to a third party is whether NTIA may relinquish possession and control of the root zone file- or any similar component of the Internet that was financed and developed by the United States—without authorization from Congress.
The letter asks the GAO to prepare a report answering three specific questions:
1. "Would the termination of the NTIA's contract with ICANN cause government property, of any kind, to be transferred to ICANN?
2. Is the authoritative root zone file, or other related materials or information, United States government property?
3. If so, does the NTIA have the authority to transfer the root zone file or other related material or information to a non-federal entity?"
I can save them the trouble (Milton Mueller over at the Internet Governance Project, has precisely the same idea):
3. Not relevant, given the answers to 1 and 2.
The transition involves nothing more than the termination of a series of contracts, pursuant to which ICANN was performing certain services for and on behalf of the U.S. government (including management of the Internet's critical "root zone file"). There is no "territory" or "property" being transferred. It's true that ICANN will, post-transition, be managing the root zone file on its own; but the file is not government "property." It's a simple text file that consists of a list of all of the currently recognized top-level domains (.com, .net, .biz, .museum, .br, .jp, .uk …) and the Internet location of the nameservers that support each of them. You can look at it here. Go ahead and copy it! Post it on your Web site, and send copies to your loved ones and relations. Nobody can stop you from doing that, because it is not "property" that belongs to anybody—including the U.S. government.
I can't even imagine what it would mean to say that it is U.S. government property. What kind of "property"? Not real property, obviously, and not personal property, either—while it can be instantiated into tangible things (it currently resides on my computer's hard drive, I can print it out onto a piece of paper, or carve it on Mount Rushmore), none of those is "the file"—the file is intangible information.
There can be property rights, of course, in intangible information. Many files are protected by copyright, for example. But not this one. It's simply a compilation of "facts" that are unprotectable under copyright law—and in any event, the Copyright Act specifically denies the U.S. government any copyright protection for works that it creates. [And it's rather silly to even assert that the U.S. government somehow "created" the root zone file, which contains information provided by many thousands of nameserver operators around the globe.]
Trade secret protection? Uh-uh—the root zone file is hardly a secret. Patent? What, exactly?
Nobody owns that file—get used to it. It's not the Panama Canal.
And while there is a good deal of "tangible property" involved in the operation of the DNS—servers and routers and fiber optic cables and the like—the transition will involve a "transfer" of none of it.
The weird thing about the proposed transition is that what is being transferred to ICANN is … "authority," or perhaps "credibility." By ceding control over the DNS to ICANN, the U.S, government is saying to the Internet users of the world—we're satisfied that this institution can do the job on its own, so you should continue to abide by its management decisions. Nothing more (but nothing less).
Now, I don't have any problem with the notion that the administration should obtain congressional approval before completing the transition. It's a critically important moment in the history of the Internet, and in the U.S. government's relationship to the Internet, and there's certainly an argument to be made that the American people—acting through their duly elected representatives—should be consulted on the matter.
But Congress itself has already considered that, and rejected it, in last year's "Dotcom Act" [Domain Openness Through Continued Oversight Matters—nice one!]. Several early versions of the bill would have required NTIA to obtain that congressional approval before moving ahead—but as enacted, it only calls for a Comptroller General Report to be delivered to Congress and omits any mention of an approval requirement.
So this looks a little bit like an attempt by Grassley et al to get what they couldn't get in the bill last year. As I said, I'm not unsympathetic to the goal, but taking this route to get there leads to a dead end.
[I am delighted, however, to see that Sens. Grassley et al. capitalize the initial letter "I" in "Internet," as we all should do …]