[discuss] DoC steers into uncharted waters. Expect legal challenges

[John Curran]

On Mar 19, 2014, at 7:44 PM, manning bill <bmanning at isi.edu> wrote:

> http://www.lawfareblog.com/2014/03/legal-limits-on-the-transfer-of-control-to-icann
> 
> Back in 2000, the question of transference was asked and the GAO responded:
> 
> "The question of whether the Department has the authority to transfer control of the authoritative root server to ICANN is a difficult one to answer. Although control over the authoritative root server is not based on any statute or international agreement, the government has long been instrumental in supporting and developing the Internet and the domain name system. The Department has no specific statutory obligations to manage the domain name system or to control the authoritative root server. It is uncertain whether transferring control would also include transfer of government property to a private entity. Determining whether there is government property may be difficult. To the extent that transition of the management control to a private entity would involve the transfer of government property, it is unclear if the Department has the requisite authority to effect such a transfer. Since the Department states that it has no plans to transfer the root server system, it has not examined these issues. Currently, under the cooperative agreement with Network Solutions, the Department has reserved final policy control over the authoritative root server."

Bill - 
 
  This has already been discussed on this list recently, and you only cite 
  a subset of the answer from the GAO.  See attached prior email from last 
  month on this list with slightly more context.

FYI,
/John

Disclaimer: My views alone.

===
Begin forwarded message:

> From: Milton L Mueller <mueller at syr.edu>
> Subject: Re: [discuss] discuss Digest, Vol 3, Issue 67
> Date: February 18, 2014 at 6:08:15 PM EST
> To: Phil Corwin <psc at vlaw-dc.com>, "discuss at 1net.org" <discuss at 1net.org>
> 
> Phil:
> 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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