WASHINGTON - The NTIA announced that it would violate federal law by allowing the contract between the US government and the Internet Corporation for Assigned Names and Numbers (ICANN) to lapse at the end of September. According to TechFreedom, this contract currently grants the US formal approval over changes to the authoritative root zone file and the Internet Assigned Numbers Authority (IANA) functions, which tie together the domain name system.

The NTIA announcement of its intent to allow the IANA functions contract to expire is a direct violation of the current law prohibiting any use of taxpayer funds “to relinquish the responsibility … with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority [IANA] functions.” 

“Making this decision obviously required NTIA staff time, and thus appropriated salaries–in addition to NTIA’s large expenditures on evaluating ICANN’s proposed reforms,” said Berin Szóka, President of TechFreedom. “This is a deliberate affront to Congress. Doing something Congress expressly told the NTIA not to do is dangerously erosive of the rule of law and the Constitution’s separation of powers. NTIA is also rushing forward before the GAO has answered the question Congress asked it: is the IANA function a government asset? If so, it cannot be transferred without affirmative Congressional authorization. We hope that Congress will act to protect its Constitutional prerogatives.”

“The courts can still pause the Transition in September, or unwind the Transition even after the contract expires,” explained Szóka. “That could happen even if Congress chooses not to defend itself, because private plaintiffs could raise these issues too. Congress has three other options. First, it can and should respond to NTIA’s violation by reducing its funding, including zeroing out the NTIA administrator’s salary and personal budget. Second, the constitution provides a clear remedy for such violations of the separation of powers: impeachment of the Senate-confirmed officers involved. Finally, those same officers are violating a federal criminal law. Congress can request DOJ prosecute the case.”

“We’re not against the Transition in principle,” concluded Szóka, “but we are against rushing it before key questions have been resolved and against allowing the Administration to ignore the law and Constitution. The irony here is overwhelming: the NTIA insists the accountability mechanisms ICANN has offered will be adequate to ensure that future ICANN CEOs will not run roughshod over the ICANN community, even while breaking just such an ‘accountability mechanism’ in the U.S. Constitution. This decidedly un-immaculate conception of ICANN’s own constitutional order bodes very ill for all those concerned about the future of Internet governance and Internet freedom.”