Obama-appointed judge lets Internet giveaway proceed

A federal judge in Texas who was appointed by Barack Obama, George C. Hanks Jr., on Friday refused to delay the president’s planned giveaway of U.S. oversight of a key piece of the Internet, setting up the transfer when a critical contract expires heading into the weekend.

The states of Arizona, Nevada, Oklahoma and Texas had sued to block the U.S. from giving up oversight of the non-profit Internet Corporation for Assigned Names and Numbers, which maintains databases for Internet domain names, the Internet’s phone book.

At the tech site Arstechnica, the concerns about the loss of U.S. control were discounted.

“Remember the projected Y2K bug disaster? The world’s computers would supposedly go haywire as the clock ticked to January 1, 2000, thus destroying the world and ensuing widespread panic. Didn’t happen. Fast forward to today, however, and another doomsday scenario is afoot (albeit with much less fanfare),” said the blog.

“If many politicians are to be believed, an Internet disaster is set to commence this Saturday. That’s when a tiny branch of the U.S. Commerce Department officially hands over its oversight of the Internet’s ‘address book’ or root zone – the highest level of the domain naming system (DNS) structure – to a nonprofit, a Los Angeles-based body called the Internet Corporation for Assigned Names and Numbers (ICANN).”

But others were raising concerns.

It was the late Phyllis Schlafly who, earlier this year, characterized Obama’s plan as “like telling the fox to guard the chicken coop,” trusting the likes of Cuba, Venezuela and China to ensure the continued freedom of the Web.

The transfer of oversight to an obscure non-profit called the Internet Association for Assigned Names and Numbers, ICANN, set for Saturday, “could be the most dangerous use yet of Obama’s now-famous pen,” the conservative icon said at the time.

The states’ lawsuit against the National Telecommunications and Information Administration, the Department of Commerce and others sought a halt to the transfer.

Filed in U.S. District Court in Galveston, Texas, the lawsuit argued the U.S. funded the foundations of the Internet and for decades has been managing it appropriately, including through contracts such as the NTIA’s agreement with ICANN to perform Internet Assigned Numbers Authority functions.

But the lawsuit wasn’t the only opposition that has arisen in the fourth quarter.

A coalition of 77 national security, cybersecurity and industry leaders wrote a letter to Defense Secretary Ash Carter and Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff, just days ago asking for intervention.

“As individuals with extensive, first-hand experience with protecting our national security, we write to urge you to intervene in opposition to an imminent action that would, in our judgment, cause profound and irreversible damage to the United States’ vital interests,” the letter said.

“Indeed, there is, to our knowledge, no compelling reason for exposing the national security to such a risk by transferring our remaining control of the Internet in this way at this time. In light of the looming deadline, we feel compelled to urge you to impress upon President Obama that the contract between NTIA and ICANN cannot be safely terminated at this point.”

The signers included former Assistant Secretary of Defense Frank Gaffney Jr., former Deputy Under Secretary of Defense for Intelligence Lt. Gen. William “Jerry” Boykin (Ret.), former Senate Minority Whip Jon Kyl, former Director of the Defense Nuclear Agency Vice Adm. Robert Monroe (Ret.) and former Chief Assistant U.S. Attorney for the Southern District of New York Andrew McCarthy, among others.

They warned: “In the absence of U.S. government involvement in IANA, it seems possible that, over time, foreign powers – including potentially or actually hostile ones – will be able to influence the IANA process. Even coercing the delay in approving IP addresses could impact military capabilities. From a broader view, given the well-documented ambition of these actors to restrict freedom of expression and/or entrepreneurial activity on the Internet, such a transfer of authority to ICANN could have far-reaching and undesirable consequences for untold numbers of people worldwide.”

Just a few days earlier, GOP senators, including Chuck Grassley, Ted Crux, Roy Blunt, Richard Burr and Ron Johnson, released a statement opposing the giveaway.

“It is profoundly disappointing that the Obama administration has decided to press on with its plan to relinquish United States oversight of crucial Internet functions, even though Congress has not given its approval. For years, there has been a bipartisan understanding that the ICANN transition is premature and that critical questions remain unanswered about the influence of authoritarian regimes in Internet governance, the protection of free speech, the effect on national security, and impacts on consumers, just to name a few,” they said.

“Without adequate answers to these questions, it would be irresponsible to allow the transition to occur in 15 days simply because of an artificial deadline set by the Obama administration.

“In fact, Democrats at both the state and national level have echoed many of these concerns. For example, former President Bill Clinton has warned that ‘[a] lot of people who have been trying to take this authority away from the U.S. want to do it for the sole purpose of cracking down on Internet freedom and limiting it and having governments protect their backsides instead of empower[ing] their people.’

“The issue of Internet freedom should unite us Americans – Republicans, Democrats and independents alike. Partisanship and political gamesmanship have no place when it comes to the Internet, basic principles of freedom, and the right of individuals in our great nation and across the globe to speak online free from censorship.”

In the lawsuit, the states warned that .gov addresses are at risk.

“The NTIA currently has the authority to authorize changes performed by ICANN. Should NTIA fail to renew the contract and relinquish its approval authority, ICANN could take unilateral actions adversely affecting the .gov address. The sole control that the U.S. government would have to safeguard .gov and .mil is through an exchange of letters, which are non-binding and lack the certainty of a legal contract that would guarantee U.S. control and ownership in the future.”

ICANN could, for example, the letter noted, “eventually delete the .gov top-level domain name or transfer it to some other entity, cutting off communications between the states and their citizens and forcing the states to use ordinary top-level domain names (such as .com) to try to community with their citizens.”

ICANN also “could charge additional fees,” the states noted.

Congress already has acted twice to prevent the move, adopting “appropriations riders prohibiting any use of taxpayer funds ‘to relinquish the responsibility of the National Telecommunications and Information Administration … with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.'”

“Is this move going to strengthen America, or is this move going to weaken it? I think it’s very clear that if we do what President Obama wants to do, it’ll weaken America’s stance again,” said Yoho, who is a strong supporter of the DOTCOM Act.

That bill passed the House of Representatives overwhelmingly last year but didn’t get action in the Senate.

“The U.S. has been in control of the domain names of the Internet since its inception. If we relinquish this control, it goes possibly to the U.N. Then you have countries like Russia, China and Iran and any other country that wants to play, and [they get to] determine how to regulate those domain names within their countries,” Yoho explained.

He warned of authoritarian leaders controlling what their people can access.

“I think you’re going to see a decrease in access to the Internet, a decrease of freedom over the Internet to an extent we have never experienced before,” he said.

Judith Bergman of the Gatestone Institute said the move could “spell the end of the current era of free speech on the Internet, as well as free enterprise.”

Authoritarian governments around the world already have bolstered Bergman’s case. China issued a statement saying, “It is necessary to ensure that United Nations plays a facilitating role in setting up international public policies pertaining to the Internet.”

The Russians weighed in, arguing, “We consider it necessary to consecutively increase the role of governments in the Internet governance, with strengthening the activity of the International Telecommunications Union [the UNs telecommunications arm] in this field … in the development of ethical aspects of Internet use.”

Last month, a coalition told leaders of both parties in Congress that it already has ordered the NTIA “not to let lapse the government contract.”

But the Obama administration is doing exactly that.

“It is, by its own admission, doing so as part of a drawn-out process resulting in the decision to let the IANA contract lapse – precisely what Congress forbade NTIA to do,” coalition members said.

“If NTIA allows the contract to lapse, it will have violated federal law,” the letter said. “The decision to abandon an 18-year contractual relationship governing the Internet has obviously consumed significant NTIA resources, both to fund outside experts and to pay for time spent on the issue and on NTIA employees making a decision about whether the extend the contract.”

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