At the stroke of midnight on September 30, 2016, America said good-bye to its long-time oversight of the internet, and along with it, the certainty of internet freedom.
Because the internet was started in the United States, from its inception, the system of managing domain names and numbers has always been conducted in or by the United States. In 1998, the Department of Commerce (DoC) contracted ICANN, a California-based non-profit, to perform the function of IANA management. It’s a critical role to ensure that internet domain names are not duplicated and that the assigned numbers are secure. DoC maintained oversight of ICANN and also performed some related administrative tasks.
Under U.S. oversight, ICANN has been doing a stellar job of keeping the internet free and secure. But, as internet usage expanded beyond U.S. borders, demands came for the U.S. to cede control of internet oversight. These demands were always resisted. Then, on March 14, 2015, the Obama Administration announced that it would relinquish internet oversight and place it into the hands of a then-unnamed global multi-stakeholder. Free speech advocates and others expressed concern that the move might result in domain management falling into the hands of dictatorial regimes such as China or Russia. Both the DoC and ICANN assured the public that they would not allow internet oversight to transfer to a tyrannical government or to any government entity.
The proposed plan to transfer stewardship of IANA was finally completed in March of 2016 at an ICANN conference held in Morrocco. Under this proposal, ICANN itself will maintain authority over IANA, but will create an oversight body called the “empowerment community” to which it will have to answer. The proposal also imbues ICANN’s Governmental Advisory Committee (GAC) with increased say. Though ICANN’s bylaws prohibit any particular government from making direct decisions regarding budgets, board member removal or ICANN governance, the new proposal will now make the GAC a participant in these decisions. Additionally, the requirement to reject GAC proposals will increase from a simple majority vote to a vote of 60 percent. These changes defeat the original purpose of the Committee, which was to ensure that no government would have too much influence over ICANN’s operations.
Currently there are 171 government members of the GAC and 53 non-governmental members that have observer status, including the Organization of Islamic Cooperation (OIC), as well as all the United Nations’ agencies that have an interest in global internet governance. (This includes UNESCO, which is largely influenced by the OIC.) Several of these members constitute tyrannical regimes or other types of anti-freedom entities.
When the discussion of Internet oversight relinquishment originally arose, some believed that because ICANN has no control over actual internet content, suppression of free speech was a non-issue. They were wrong. The OIC, claiming that it’s the “sole official representative of the Muslim world” and some of its Member States have already complained about the issuance of domain names “with an Islamic identity” such as .halal or .Islam, arguing that these should be reserved exclusively for OIC Member States so as not to “offend” Islam. Even under U.S. oversight, ICANN deferred the decision on private applications for use of these domain names, in effect capitulating to the OIC’s demands.
The DoC – ICANN contract expired on September 30, 2016. Though the DoC had the option to renew the contract for an additional three years, it declined. To their credit, Senators Ted Cruz (R-TX) and John Thune (R- SD) led the charge in the Senate to stop the transfer by demanding that a transfer block be tacked on to budget-related legislation. However, Senate Majority Leader Mitch McConnell, already concerned with budget opposition by the Democrats, refused to comply.
Then, last week, four Republican Attorneys General filed a lawsuit in a Texas District Court, attempting to block the transfer. They haled from Texas, Arizona, Oklahoma and Nevada. The Plaintiff States requested a declaratory judgment, a temporary restraining order and a preliminary injunction to block the transfer, arguing that relinquishment of internet control amounted to a transfer of U.S. government property in violation of the Constitution’s Property Clause. They asserted that the Obama Administration simply does not have the authority to make such a transfer without congressional consent. Unfortunately, in a split court decision, the motion was denied.
Though some Democrats openly supported the transfer, such as Nita Lowey – (D –NY), Mike Honda – (D-CA), and Brain Schatz – (D-Hawaii), others, like the high profile Senator and Assistant Minority Leader Dick Durbin, confessed that they knew nothing about the issue and hadn’t even heard about it until Ted Cruz raised a stink.
For the most part, tech and social media companies such as Google, Facebook and Amazon support the transfer of internet oversight, likely because ICANN is populated with tech gurus, who will now have more authority. Given that Facebook and Twitter already have “hate speech” policies that censor speech, it’s no wonder that they are complicit in supporting a move with potential free speech consequences.
Ed Black, President of the Computer and Communications Industry Association insists that all those who care about “internet freedom” support the transfer. Yet, how this “internet freedom” is interpreted, is obviously up for grabs. ICANN’s CEO and President admitted in his testimony at a recent Senate hearing, that ICANN is not bound by America’s First Amendment. Nor are the governments of other countries. For example, European countries that claim to have “freedom of speech,” argue that “hate speech” is not “free speech” and accordingly have various types of hate speech laws. Often, they do a balancing test of “freedom of speech” versus a so-called “right” to be free from “offense”. America is the only country in the world that truly protects free speech.
Those who understand the importance of internet oversight and believe that America should remain the stewards of internet freedom are not done fighting to keep its control out of the hands of questionable entities. Even though the DoC and ICANN have promised not to transfer oversight authority to dictatorial regimes, ICANN has already capitulated to OIC demands and ceded additional control to governments including authoritarian regimes. Furthermore, once America relinquishes control, she will never get it back. Transparency and accountability, though promised, can’t be guaranteed. And, down the road, yet another transfer could conceivably occur. America would have no power to prevent it.
Champions of freedom are exploring ways to take back internet oversight, but the possibilities look bleak. One possibility is to appeal the Texas Court’s decision denying the motion made by the Republican Attorneys General. The other is to proceed to court in a full-fledged trial. Still another option is to pass legislation to try to take back control of the internet (since technically, it has already passed as of October 1, 2016). In the meantime, ICANN is trying to implement the transfer as quickly as possible, seeking completion prior to the U.S. Presidential election in November of 2016, just in case the new President disagrees with Obama’s view regarding America’s role in internet oversight.
At the stroke of midnight on September 30, 2016, in furtherance of Obama’s anti-exceptional, post-American, global agenda, the certainty of the internet’s security, stability, and freedom has vanished into thin air, only to be replaced by one big global question mark.