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GAO: Internet IANA functions transition is not a transfer of government property

GAO says IANA transition is not a transfer of government property, which would require congressional approval.

The U.S. Government Accountability Office (GAO) released an analysis yesterday determining that the proposed transition of IANA functions to ICANN does not constitute a transfer of U.S. government property requiring congressional approval.

This is important because it’s one of Ted Cruz’s arguments to try to stop the transition. He is arguing that the president can’t give away government property without congressional approval:

As Members of the legislative branch, Congress should stand united to rein in this President, to protect the constitutional authority expressly given to Congress to control disposition of property of the United States. To put the matter very simply: The Obama administration does not have the authorization of Congress, and yet they are
endeavoring to give away this valuable, critical property–to give it away with no authorization of law.

The GAO released a 29-page decision (pdf). Here’s the summary:

The Department of Commerce’s National Telecommunications and Information Administration (NTIA) proposes to transition its oversight of key Internet technical functions (the IANA functions) and the Internet domain name system to a global multistakeholder community. We addressed whether U.S. Government property will be transferred or otherwise disposed of in connection with the transition in violation of the Property Clause of the U.S. Constitution (Article IV). We find it is unlikely that either the domain name system or the authoritative root zone file (the “address book” for the top-level domain) is U.S. Government property under Article IV. We also find the Government may have certain data rights, and has limited intellectual and tangible property, all of which constitute Article IV property, but that property will be retained and not disposed of in connection with the transition. Finally, the Government has a contractual right to continued performance by the entities carrying out the IANA functions and related services. That right, which also constitutes U.S. Government property, would be disposed of if NTIA terminates the agreements rather than allowing them to expire, but NTIA has the requisite authority to dispose of this Government property interest.

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  1. Aaron Strong

    Alright, so the GAO says the the root zone file (address book) is not property…. That begs the question, “why are so many individuals and governments adamant about a multi-stake governance model?”

    • John Berryhill

      Because that is the entire premise on which ICANN was formed.

      While I realize that it is popular for some to tout deliberately misinformative lines such as “Obama’s Internet Giveaway”, it has been the objective to get the government out of the internet business through the Clinton and Bush administrations.

      • Aaron Strong

        Regardless of Clinton, Bush and Obama there are many authoritarian governments who can’t wait to be in the internet business as “advisory” roles…..Here is the quote of the day regarding critics of the multistake governance model as it applies to our subject:

        “Without a vote, law is just force inflicted by the wealthy and powerful. Multistakeholderism is a coup d’etat against democracy by those who would merely be lobbyists in a democratic system.”

        • Andrew Allemann

          That’s just it, Aaron. Governments are not getting more power under the transition. They’re getting less. That’s a key reason this transition is a good thing. If Cruz blocks it, it provides an opening for governments to try to push for an alternative.

          • Aaron Strong

            Andrew – It can be argued, that with the transition, oppressive authoritarian governments are gaining power and influence while the U.S government is losing power and influence.

          • Andrew Allemann

            I just don’t see how you can argue that, but I’m all ears. The only way the governments get sway is if they come to a consensus, which means no other country objects. So if China and Russia want to team up to push something through the GAC, the US can just object.

          • Aaron Strong

            Andrew – Oppressive authoritarian governments will have their agenda pushed through several avenues of the multistake model. One, they will use their advisory role. Two, they will influence private companies. By using both the government advisory role and the privatization role their influence will be much larger than through the existing model…

        • John Berryhill

          I was simply answering your question. If you want NTIA to run the root, that’s fine. But there was utterly no reason to have formed ICANN in the first place, since the entire point of ICANN was to get the NTIA out of the loop. It’s not some “new thing” that was recently cooked up by the current administration. To suggest otherwise is dishonest, but there are certainly people who are dishonestly framing it that way.

          So, regardless of one’s position on the actual transition, what do you think of a cause which uses dishonesty to advance it’s position?

          • Aaron Strong

            John – Point taken. I don’t believe most people who oppose the transition do so solely on the premise of Obama’s stance. On the flip side, most people who propose the transition do not do so due to Cruz’s stance…..

  2. Meyer

    “We find it is unlikely that either the domain name system or the authoritative root zone file (the “address book” for the top-level domain) is U.S. Government property under Article IV.”

    Here is what jumped out at me.
    We know that this report was reviewed by a number of lawyers and politicians.
    When lawyers hedge by saying “it is unlikely” raises red flags.

    • John Berryhill

      “When lawyers hedge by saying “it is unlikely” raises red flags.”

      Absent a Supreme Court decision on point, it is generally the case that lawyers will examine the relevant law and opine as to whether an outcome is likely or unlikely. Quite obviously a court can decide whatever it wants to decide.

      Take, for example, the proposition that was raised relative to Ted Cruz’ eligibility to run for US president, having been born in Canada. I believe it is unlikely he would have been found ineligible in the event the Supreme Court got its hands on such a dispute. In general, the 14th Amendment defines two ways to become a citizen – by birth or naturalization – and Cruz was entitled to be a US citizen having been born abroad to a US citizen. That, again in my opinion, would be the likely outcome.

      But since the US Supreme Court has never directly ruled on that question – whether a US citizen born abroad qualifies under Article II – then the only thing a lawyer can do is to look at various cases having some relevance to the question, and determine what the court would “likely” do.

      Certainly there are arguments that could be made the other way, and one of Cruz’s primary opponents said that he had “really good lawyers” who believed differently. That same primary opponent also suggested that Cruz’s father was involved in the assassination of JFK, and also had “investigators in Hawaii” who could prove that the current president is also ineligible by reason of birth circumstances.

      The only people who can say, with absolute certainty, what the law is, are the nine – oh, excuse me – eight justices of the Supreme Court. A lawyer can be 99.99% sure what they would rule (or even decline to hear) on a given question, but it may surprise you to learn that sometimes courts do surprising things.

      But, since a case on this question would not reach the Supreme Court until next term, and the court only has eight members, perhaps you might tell us – with certainty – who will be appointing the next justice to the Supreme Court. If you can’t do that, then I don’t see how you could know, with any degree of certainty, what such a court might rule on a novel issue. After all, the appointment might be made with the guy who has “really good lawyers” who believe that Cruz was not eligible to run for president. Strange things can happen.

  3. Christian

    From page 4:

    “Although it is unlikely that NTIA’s planned actions would violate the Constitution, we acknowledge that the proposed transition would result in NTIA surrendering the role that the U.S. Government has played in some form for nearly 50 years. Today, NTIA exercises both broad contractual oversight and specific contractual control regarding the IANA functions and domain name system, a role described by the global multistakeholder community and NTIA itself as providing “stewardship,” an “accountability backstop,” and a “safety net.” Congress may wish to take steps to address the broader issues raised by the transition if it believes there should continue to be direct U.S. oversight and control. This opinion expresses no views on the merits of the proposed transition.”

  4. John Berryhill

    @Aaron:

    “John – Point taken. I don’t believe most people who oppose the transition do so solely on the premise of Obama’s stance. On the flip side, most people who propose the transition do not do so due to Cruz’s stance…..”

    I think you may have missed my point. Those who “propose” the transition did so in the late 1990’s leading up to the creation of ICANN for the explicit purpose of carrying out the transition. At that point in time, Sen. Cruz was not an elected official, but a lawyer in private practice working for the National Rifle Association and working to impeach President Clinton. So, no, of course disagreement with his position has nothing to do with him, since it is a project which began long before he had any national significance.

    Sen. Cruz does, however, frame the transition as the “Obama giveaway of the internet” which is patently false, since the project long pre-dates the transition, and his rhetoric on the subject is designed to resonate purely on an emotional level with persons who dislike President Obama, by conveying the false impression that this is a “new” thing.

    And, again, whatever one’s opinion of the transition may be, or may have been for the last nearly two decades of work toward it, it is amusing to see the general political alignment of those who are fighting tooth and nail to preserve one of Vice President Gore’s signature accomplishments in having this function established under NTIA in the first place – and also about which they have simultaneously lampooned him for years.

    But somehow I don’t think you are going to see Cruz change from “fighting the Obama giveaway” to “preserving Al Gore’s internet”, but that is a more honest description of what Cruz is up to.

  5. John

    Oh, what a surprise…

    An office under the current administration issued an opinion in line with what the administration is trying to railroad through past Congress.

    Recently I saw a great Facebook meme making the rounds which takes a scene from the movie “Goodfellas” showing Ray Liotta and another ostensibly laughing hysterically while the caption reads:

    “WE INVESTIGATED OURSELVES…

    “AND FOUND WE DID NOTHING WRONG!!!”

    Here it is in fact: https://imgflip.com/i/jfpqc

    And that is what this latest announcement reminds me of, nothing more…

    • John

      P.S. And before anybody points out that the GAO works for Congress, “The GAO is headed by the comptroller general of the U.S., a professional and non-partisan position in the U.S. government. The comptroller general is appointed by the president, by and with the advice and consent of the Senate, for a 15-year, non-renewable term.” (https://en.wikipedia.org/wiki/Government_Accountability_Office)

      I don’t buy this lovely new conclusion at all.

      • John Berryhill

        What a well-reasoned point-by-point refutation of a legal opinion you have written there.

        Thank goodness we have anonymous people on the Internet to clarify the motives and interests of others. Lol

  6. Joseph Peterson

    This issue of the IANA transition (a.k.a. “internet giveaway”) isn’t a topic I pay much attention to, in spite of skimming dozens of articles on the subject, which end up in my inbox. So I don’t pretend to know anything.

    But I have a hunch. And that hunch is based on who ISN’T complaining about the proposed transition.

    At home in the USA during an election year, there’s a lot of grandstanding; and support / opposition for this IANA transition seems to divide along partisan party lines. That doesn’t mean Ted Cruz’s concerns are invalid.

    But if Cruz were right about this IANA transition leading toward censorship by China and Russia, then I would expect to see a wider spectrum of organizations up in arms about this threat to civil liberty and free speech.

    Liberals generally like free speech. Large internet corporations like Google aren’t eager to face censorship by Russia or China. Europe is full of democracies, including civil rights groups and web-based companies. Their citizens probably don’t want to be censored by Russia or China.

    So why don’t we hear people in Ireland, Germany, France, England, Denmark, or the Netherlands urging the USA to safeguard IANA and protect them from Russian / Chinese censorship?

    Because they don’t care about free speech? Or because they don’t care about U.S. partisan grandstanding? Everything I’ve read by observers in those countries indicates the latter, which suggests that this “Internet Giveaway” threat is a mirage, manufactured to serve political ends.

    • John

      >”Liberals generally like free speech. Large internet corporations like Google aren’t eager to face censorship by Russia or China. Europe is full of democracies”

      Well you’ve certainly made yourself a useful dupe, Joseph.

      However, if you actually watched the speech Cruz made the other day, you’d see mention of how “Europe” is totally on board with censorship. And when have the likes of Google and Facebook not cowed to the censorship demands of the likes of China?

      As for your first remark I quoted there, you are so deluded it’s almost unimaginable.

      Do you know what I’ve been mentioning here and there for years with the most honest and personal of conviction even born of personal experience, Joseph?

      In my free and independent mind I have mentioned that the typical partisan stereotypes are largely true and have a strong basis in reality. And one of the biggest of them all is how LIBERALS HATE FREE SPEECH. Without a doubt, the “conservative right” practices its own faults on the two-sided coin we are allowed to have in this country, but one of the signature hallmarks of the “liberal/left” is their hatred of true free speech, their most eager desire to suppress it and practice censorship whenever they can, naturally under a pretext of righteousness of course, and “hate speech,” and so forth. They hate free speech so much it’s like sunlight to a vampire. If you have not seen and recognized this by now then you are totally blinded to it. Perhaps you are even of that camp and it’s impossible for you to even see or admit as a result.

      So watch and listen to Cruz’s speech and take particular note of his mention of Europe and companies like Facebook, Google and such. Even one of my oldest friends from high school who used to work for the UN has spouted the suppression of free speech in the name of “hate speech” all these years later. (Oh, what a surprise.)

      Here’s the video from September 8:

      “Sen. Cruz Urges Colleagues to Stop Obama’s Internet Giveaway”

      https://www.youtube.com/watch?v=OmqVW5v0wSw

  7. John

    This one looks interesting, can hardly wait to check out the video:

    “The EU announced on Tuesday that Facebook, Twitter, YouTube and Microsoft had “signed up” to a new ‘Code of Conduct’ containing a long list of new “commitments”.

    They include working closely with the EU, national governments and “their law enforcement agencies” to “criminalise” perceived “illegal hate speech” online and censor it within 24 hours.”

    http://www.breitbart.com/london/2016/06/04/video-eu-and-facebook-pledge-to-reeducate-users-and-crush-free-speech/

    But in true “ad hominem” spirit, since it’s “Breitbart we know can simply dismiss it, yes? After all, did not the Clinton campaign and liberal just reveal that Breitbart has no right to even exist and will be shut down when she wins?

    • John Berryhill

      “But in true “ad hominem” spirit, since it’s “Breitbart we know can simply dismiss it, yes?”

      Be careful with matches around that strawman. Nobody here said that.

      But why not? You dismiss the GAO report merely because it is a GAO report, and use such Aristotelian logical arguments as:

      “Pompous arrogant wind”

      “you’ve certainly made yourself a useful dupe”

      “you are so deluded it’s almost unimaginable”

      I’ve disagreed with Joseph Peterson on all kinds of things in the past, but that is because he and I have had different opinions on those things. It’s not because he is evil and stupid.

      But for an anonymous nobody with Cheetoh-stained fingers posting from your mom’s basement, you are an exceptionally hypocritical one.

      • John

        You may be useful for defending UDRP cases, and you’re obviously in good with the movers and shakers, but you’re not nearly as clever as you think you are. In fact, you’re the one who plays the part of the abusive troll while pointing the finger.

        It’s funny I almost hit you with the “straw man” charge this time myself but refrained. I’ve pointed out some of your “mistakes” before, however, so you’ve done it again as they say, and there you go misusing the term yourself despite how smart and mighty you continually make yourself out to be.

        Obviously you still just don’t get it, how irrelevant your original pompous arrogant and abusive statement was to my point. And how your own acknowledgement that courts can decide however they want even supports my point.

        Now right about now, I have a strong hunch that Joseph himself might actually be rethinking what he said after seeing everything else I posted, which you not surprisingly have sidestepped. He actually seems to care about things like free speech, and upon seeing everything I posted I strongly suspect it would give him pause and he would actually care about all of it. I also suspected he might even entertain the idea that the remarks I wrote to him were not born of the kind of trollish abusiveness you like to practice, but rather born of a passionate honesty without malicious intent, even with a measure of good intent because of honestly believing he has genuinely been deceived no matter how smart he is. Perhaps, but one can never be sure.

        >”It’s not because he is evil and stupid.“

        Oops, but apparently counselor you just can’t resist engaging in the “straw man” fallacy yourself for real, however, since while I will even grant that one could honestly and plausibly argue I suggested Joseph had been “stupid,” I most certainly did not state or even imply he had been evil. Not surprisingly, that is entirely from whole cloth added for whatever maximum affect you were striving for, and hope you have enough food and drink for the day while while you march around that straw man there.

        >”But for an anonymous nobody with Cheetoh-stained fingers posting from your mom’s basement, you are an exceptionally hypocritical one.”

        Yeah, yeah, more name-calling, you’re the troll, blah, blah, I get it.

        • John Berryhill

          I’m guessing reading comprehension was not a requirement when you were hired to do PR for Senator Cruz.

          “I’ve disagreed with Joseph Peterson on all kinds of things in the past, but that is because he and I have had different opinions on those things. It’s not because he is evil and stupid.”

          Most normal people would take that to mean that I believe Mr. Peterson to be a decent and intelligent person, and that I do not attribute our various disagreements to a belief that he is evil and stupid.

          Unlike you, Mr. Peterson further stands behind his opinions with his own name.

          As far as being “obviously in good with the movers and shakers”, I’d be fascinated to know who such people are. I’m certainly not connected with a US Senator, and not collecting a check from ICANN or the NTIA, so clearly I’m missing out on something.

          It is simply amusing that you have no substantive argument with the GAO report, but dismiss it because it came from the GAO; and then heap insults on Mr. Peterson, while you regularly accuse people of making ad hominem arguments.

          Maybe your credibility would be improved if you put a string of titles after your name like some other regulars here….

          (Tin Goldfish) (former NCAA Water Boy) (Paid Lapdog) (Broken Record)

      • John

        But wait, “tin man,” distinguished commenter Berryhill has already declared that I have committed the “straw man” fallacy by merely raising the question of whether people would want to commit that kind of “ad hominem” fallacy regarding Breitbart. You really want to work against him and commit the latter in front of the world now? LOL, you guys are like the Keystone Cops…

  8. John Berryhill

    Just to make sure the context is understood here, this GAO opinion was requested by Ted Cruz.

    The interested reader might want to take a look at the very first page and first sentence of the report.


    September 12, 2016

    The Honorable Charles E. Grassley
    Chairman, Committee on the Judiciary
    United States Senate

    The Honorable Ted Cruz
    United States Senate

    The Honorable Bob Goodlatte
    Chairman, Committee on the Judiciary
    House of Representatives

    The Honorable Darrell Issa
    House of Representatives

    Subject: Department of Commerce—Property Implications of Proposed Transition of U.S. Government Oversight of Key Internet Technical Functions

    Congressional Requesters:

    This responds to your request for our legal opinion…
    —-

    The comment by “john” above about “we investigated ourselves” and his suggestion that the report was going to be biased because it was prepared by the GAO, begs the question of why Cruz et al. requested it in the first place.

    This report itself would not exist if Cruz and three other GOP officials had not asked for the GAO to study the question.

    So, “john”, if it is obvious to you that the GAO would not provide an objective legal opinion on the question, then why did Cruz ask them for one?

    Is he not as smart as you are?

  9. John

    Honestly, Berryhill, you may enjoy the advantage of being popular among the movers and shakers of the domain industry, which to clarify is what I meant with that, but you are pathetic in your arrogance, mental dishonesty and juvenile name calling escapades.

    It seems that either reading comprehension or integrity (or both) escaped you as well.

    “I’ve disagreed with Joseph Peterson on all kinds of things in the past, but that is because he and I have had different opinions on those things. It’s not because he is evil and stupid.”

    Most normal (and honest) people would take that to mean that you had just effectively and implicitly accused me of having done exactly that in your second sentence, and that such is even the entire reason why you added that second sentence to begin with. I guess in true and unsurprising dishonest style you just don’t want to cop to the obvious once I pointed out your mistake, however.

    “Unlike you, Mr. Peterson further stands behind his opinions with his own name.”

    If you were an attorney (oh wait, you are, aren’t you?) you might object to that on the grounds of relevance, but I’ll do it for you now: objection, relevance. However, in case any readers are not aware, there has always been one or two that are so bent out of shape over anyone posting anonymously in the blogs that they will say anything to convince people that it is so terrible and bad, no matter what you post, and apparently Berryhill is of that mindset.

    Now it seems that reading comprehension has escaped you again too, because you still just don’t get my original point.

    “Oh, what a surprise…

    An office under the current administration issued an opinion in line with what the administration is trying to railroad through past Congress. […] the comptroller general is appointed by the president […]”

    Most normal people would take that to mean I’m not surprised that an agency led by someone appointed by the President would issue an “opinion” tending to support an agenda of importance to said President, regardless of what is written in it, and that I mean to imply that such “opinion” is very probably biased and flawed accordingly.

    Most people now also understand that when it comes to such debatable matters and decisions the outcome is often a matter of the uncertain personal judgments and opinions of imperfect human beings rather than any objectively unquestionable truth, and that therefore the outcome can be decided either way because of that. Just as you so thoughtfully pointed out above that “[q]uite obviously a court can decide whatever it wants to decide.” Quite.

    Ergo, quite obviously, the point of that original statement of mine you have been so upset about was not to offer a “a well-reasoned point-by-point refutation of a legal opinion” in that specific instance, but merely to point out my skepticism about such an “opinion” coming from an organization so led by a presidential appointee.

    Now as for any “point-by-point refutation of a legal opinion” you seek, I have not read the 29 page GAO “decision,” and I suspect most people haven’t either, including almost everyone who posts here. Perhaps I will eventually. But just based on what Andrew quoted in his original post, there is no quoted indication of any basis for such an announced “opinion” or “decision.” As quoted by Andrew, the summary features such illuminating phrases as to their findings as “unlikely,” “may have,” “that property will be retained and not disposed of,” and regarding one element, “NTIA has the requisite authority to dispose of this Government property.”

    Really? They don’t say. Very well. Without having read the 29 page decision myself, is anyone aware of anything better than that, because those phrases just don’t do it for me. I happen to think I’m a pretty thoughtful person, and where they say “unlikely,” I say it is property. Do they offer any other basis for “unlikely” besides “unlikely” in that 29 page decision? If anyone knows, do tell. I’ve worked with data before and know quite a lot about that, and I say the “authoritative root zone file” especially is “property.” Anyone in that 29 page “decision” provide a basis of reasoning otherwise, other than the word “unlikely”? Or should I simply defer and hold my tongue because there may be a “legal opinion” involved and a lawyer or two may have been involved in writing such a “decision”? And where the “decision” says “may have” certain data rights, I say, in my humble opinion and as a concerned American citizen, “does have,” and what is there in that 29 page decision beyond the phrase “may have” which effectively challenges my opinion of “does have”? *Does* anyone *have* any knowledge of that? And specifically what are they alluding to that is property which would really be “retained and not disposed of in connection with the transition”? I say that if any existing data of any kind is used to manage DNS after this transition, that such data is property and that such property has not been retained at all after such a transition, even if merely a copy of it still exists in US borders. Is that what they mean by “retained,” that we would still have a copy in the case of intellectual or intangible data if they are even alluding to that? And again, is there anything anyone knows about in this 29 page decision which serves as an effective basis for such a claim of “retained and not disposed”? Do tell. And as for the claim “NTIA has the requisite authority” – on what basis do they claim that? I see none at all expressed in what Andrew quoted, but perhaps it’s explained further in the 29 page document?

    As for your closing, yeah, I get it, more of your lovely juvenile name calling, but I’m the bad guy…

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