[discuss] discuss Digest, Vol 3, Issue 67
psc at vlaw-dc.com
Tue Feb 18 23:38:19 UTC 2014
Amending my prior e-mail, the quote is actually from p.211.
From: Phil Corwin
Sent: Tuesday, February 18, 2014 6:37 PM
To: 'Milton L Mueller'; discuss at 1net.org
Subject: RE: discuss Digest, Vol 3, Issue 67
Good to hear from you.
I was merely quoting from relevant sections of the GAO summary of its report and in no way was I trying to selectively skew a characterization of its conclusions. I included in my 1Net e-mail posting a link to that GAO summary where the website contained a further link to the full 2000 GAO report so that anyone with an interest could download and read all of it.
Ironically, my awareness of the GAO inquiry came from this passage:
"The U.S. Department of Commerce repeatedly refers to ICANN as the result of a policy of "privatizing" the domain name system (DNS). Privatization normally means that the supply of a product or service has been transferred from the government to a private sector company. What the Commerce Department has turned over to ICANN, however, is not ownership of a service or asset but the authority to develop policies and to legislate binding rules for the domain name registration industry. Froomkin (2000)argues persuasively that it is nothing less than an illegal delegation of government powers. The very same Commerce Department, moreover, has reserved to itself ultimate "policy authority" over the root. The General Accounting Office (GAO 2000) says that the agency does not have the authority to transfer the name and address space to a private firm without congressional legislation. The concept of
privatization", therefore, does not take us very far. (emphasis added)
---"ruling the root" by Milton L. Mueller, p. 212
Your reference spurred me to search for the original of the 2000 GAO Report, and I found that its conclusions were more ambiguous than your 2002 characterization. That GAO report contained a letter from the then-General Counsel of DOC that stated that the questions of whether the IANA functions constituted U.S. property that would require legislative authority to transfer would require considerable research before an informed answer could be provided. That research has never been conducted because, at least up to now, the U.S. has never considered transferring its counterparty status to any other entity.
I have no firm personal view as to whether DOC/NTIA could lawfully proceed as you suggest it might in 2015 in the absence of authorizing legislation. However, as a political matter, that Executive department and subsidiary agency might well wish to have the cover of some type of Congressional backing before taking such a step given the potential consequences.
Philip S. Corwin, Founding Principal
1155 F Street, NW
Washington, DC 20004
"Luck is the residue of design" -- Branch Rickey
From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: Tuesday, February 18, 2014 6:08 PM
To: Phil Corwin; discuss at 1net.org<mailto:discuss at 1net.org>
Subject: RE: discuss Digest, Vol 3, Issue 67
Your quotation from the GAO report of 2000 is rather selective. Here is a fuller picture.
"... control over the authoritative root server is not based on any statute or international agreement,..."
" The Department [of Commerce] has no specific statutory obligations to manage the domain name system or to control the authoritative root server."
"Although the U.S. government has supported and funded the development of the domain name system, Congress has not chosen to legislate specifically in this area, nor has it designated an agency to be responsible for it. DOD, NSF, and now the Department have undertaken their activities under their general authorities. "
"In its policy statement [the 1998 White Paper], the Department was announcing that it planned to phase out its management role over the domain name system, a role that the government had assumed when the ARPANET was first developed. Since it is a role not specifically required by statute, the Department was not delegating or transferring a statutory duty when it proposed to transition administrative control over the domain name system to a private entity. The Department undertook its domain name system management responsibilities to carry out the President's directive to support efforts to privatize the domain name system.
Under these circumstances, neither the Department nor any other federal agency is under an explicit statutory obligation to manage the domain name system including control over the authoritative root server."
This last paragraph convinces me that DoC has every right and authority to relinquish its control by simply walking away from the IANA contract when it expires in 2015 and announcing as a matter of policy that the transition referenced in the White Paper is finished.
I think the allegedly "unclear" nature of the transfer stems from the GAO's lack of confidence in its knowledge of both the technology of the root server system and its history. By supporting the development of the DNS, the U.S. federal government did not create a "property" interest in anything that I can see. It paid people to run a registry but as far as I know it is not claiming a property interest in the root zone data.
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