Internet naming system not U.S. property, says congressional watchdog

The U.S. Government Accountability Office has said that the internet domain name system is unlikely to be government property, ahead of the planned transfer by month end of the oversight of key technical functions supporting the internet, including the domain name system, to an independent multistakeholder body.

“It is unlikely that either the authoritative root zone file—the public ‘address book’ for the top level of the Internet domain name system—or the Internet domain name system as a whole” is U.S. government property, the GAO said in a legal opinion provided to legislators.

The report by the Congressional watchdog comes ahead of a hearing on the issue Wednesday chaired by Republican Senator Ted Cruz from Texas. The Republicans are intent on blocking the transfer of the Internet Assigned Numbers Authority (IANA) functions, currently being operated by the Internet Corporation for Assigned Names and Numbers (ICANN) under a contract with the Department of Commerce, which expires on Sept. 30.

Some of these legislators have raised questions about whether the administration of President Barack Obama can go ahead with the transfer without approval of Congress. In a letter this month to Attorney General Loretta E. Lynch and Secretary of Commerce, Penny Pritzker, the legislators said there is still no legal certainty about whether the termination of the IANA functions contract would amount to relinquishment of U.S. government property, which would then require approval from Congress.

The legislators, who are asking the administration to reconsider current plans to transition the supervision of the IANA functions on Oct. 1, 2016 as there are outstanding issues, said a request for an audit on the transfer of property issue had been submitted in 2015 to the GAO.

The U.S. 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,” according to the GAO. “We find that almost all of U.S. Government property that we have identified will be retained and not transferred or otherwise disposed of in connection with the proposed transition,” it added.

The National Telecommunications and Information Administration (NTIA), an agency within the Department of Commerce, said last month it will go ahead with its plan to transfer supervision of the IANA functions to a multistakeholder body on Oct. 1, in line with a plan first announced in March 2014.

“We thank the GAO for its thorough analysis of the property implications of the IANA transition. We are pleased that GAO concluded that the transition does not involve a transfer of U.S. government property requiring Congressional approval,” NTIA Administrator Lawrence E. Strickling said in a statement on Tuesday.

Last week, Cruz indicated that the Republicans would not give up without a fight against what he described as a “giveaway” of internet control by the Obama administration. Besides pushing for legislation called the Protecting Internet Freedom Act, which would prohibit any transfer of internet DNS functions unless expressly allowed under a federal statute passed after the new legislation has been enacted, Cruz will likely invoke riders passed by Congress earlier that prohibit spending taxpayer money on the IANA transition.

A number of tech companies including Google and Facebook have written to Congress asking them not to delay the transition.

Ahead of the hearing by the Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, ICANN released a document to clarify that the transition “isn’t the U.S. Government handing over the Internet to any one country, company or group.”

“The truth is that nobody, including the U.S. Government, has a ‘control of the Internet’ to hand over,” ICANN wrote in a brief. “The community of stakeholders that has flawlessly coordinated the Internet’s domain name and addressing systems since their inception will continue to do so.”

The Republicans have raised concerns that the transfer could increase the influence of authoritarian regimes like those in Russia, China and Iran over the Internet.

The IANA functions are very technical, invisible to average users and narrow in scope, and should not be equated with the Internet as a whole, Kathryn C. Brown, president and CEO of the Internet Society, wrote in a letter to legislators.  “Legitimate public policy issues like net neutrality, censorship, and human rights are being addressed elsewhere, and are not part of this discussion,” she added.

GAO distanced itself from this part of the dispute by stating that its opinion does not express views on the merits of the proposed transition. “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,” it said.