Rubio Urges IANA Transition Delay, Generates Some Senate Commerce Interest

Debate during a Senate Commerce Committee hearing Tuesday on the Internet Assigned Numbers Authority (IANA) transition centered on the perceived merits and consequences of proposed delays of the transition, as expected (see 1605230059). Several committee Republicans expressed interest in seeking the delay via an extension of NTIA's current contract with ICANN to administer the IANA functions, but their interest didn't appear to be strong enough to signal actual momentum in favor of a delay, stakeholders said in interviews. The IANA transition faced other roadblocks on Capitol Hill Tuesday, including the House Appropriations Committee's retention of a rider in its proposed FY 2017 Department of Commerce budget that would extend an existing ban on NTIA's use of funds on the IANA transition. House Appropriations cleared the Commerce budget on a voice vote Tuesday with the IANA transition rider intact.

Sen. Ted Cruz, R-Texas, didn't attend the Senate Commerce hearing but is circulating a draft bill aimed at barring NTIA from proceeding with the transition. The full contours of Cruz's draft bill were unclear at our deadline, but a domain names industry lobbyist told us the bill was likely to track with Cruz's previous efforts to bring approval of the IANA transition up for a vote in both the House and Senate. The draft bill “is consistent with what [Cruz's] position has been all along” on the transition, said Senate Commerce Chairman John Thune, R-S.D., in an interview. “I don't think that should come as a surprise to anybody. Stopping [the transition] completely from moving forward is going to be hard but I do think the suggestion that we make sure that we have all the I's dotted and all the T's crossed before going forward seems somewhat reasonable.”

Sen. Marco Rubio, R-Fla., publicly backed an IANA transition delay Tuesday, saying he planned to send a letter to NTIA Administrator Larry Strickling asking NTIA to extend its IANA contract for an unspecified period. Rubio's letter, first circulated last week, argues a delay is needed to “ensure that the many changes in the transition proposal are implemented, operate as envisioned, and do not contain unforeseen problems" (see 1605180063). Rubio told us Sen. Ron Johnson, R-Wis., already signed onto his letter and “there are others that I hope will sign on today.” The proposed delay “I'm outlining is a prudent one,” Rubio told us. “I'm not saying never [go ahead with the transition], I'm saying let's be cautious about it because it's an important issue.”

IANA transition supporters and skeptics testifying Tuesday offered familiar assessments of the transition's current status, with Heritage Foundation fellow Brett Schaefer arguing, even though he supports the transition's goals, that “we need to proceed cautiously” with the transition process. Schaefer has proposed a two-year delay of the transition to allow time to evaluate how ICANN operates under governance changes effected by the transition (see 1603170051). It would be “foolish to move forward” with the kinds of changes envisioned in ICANN's transition-related plans without more extensive “beta testing,” said Americans for Limited Government President Rick Manning.

IANA transition supporters told Senate Commerce that any U.S. government-sanctioned delay of the transition would harm international support for the multistakeholder Internet governance model. Wiley Rein telecom and Internet governance lawyer David Gross, speaking for the Internet Governance Coalition, said a delay of the transition will strengthen the argument against the multistakeholder model advanced by China, Russia and others. Those countries would “welcome such a decision” because it would “signal very clearly that the U.S. government has changed its position” on the role of governments in making decisions about Internet governance, Gross said. It's “neither sustainable nor necessary for the U.S. government to retain its unique role forever,” said NetChoice Executive Director Steve DelBianco. “Retaining that role increases the risks you are worried about.”

“Once we move past a certain point, there is no leverage to pull back," Rubio said during the hearing. "If this thing goes off the rails, if it in fact gets used in a nefarious way, what leverage do we have to pull back on it?” Other Senate Commerce Republicans also raised concerns about the IANA transition process, with Johnson questioning whether the transition was really necessary unless something in the current IANA functions framework is “actually broken.” Sen. Dan Sullivan, R-Alaska, said he believes China and other authoritarian governments would continue to threaten the multistakeholder model via efforts at the U.N.'s ITU and elsewhere regardless of whether the IANA transition occurs.

Thune said during the hearing a possible delay of the transition isn't an “unreasonable proposal,” but later told us he hadn't “made any final decisions at this point” whether to back a delay. “I'm going to take what we heard today and give it some thought, chat with some of my colleagues on the committee and figure out what their consensus is,” Thune told us. “There's obviously been a lot of work put into this and there were compelling arguments on both sides.”

Despite some committee members' interest in delaying the IANA transition, “I didn't hear anything at this hearing that would make me think that the transition can't happen” when the current NTIA contract expires, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. “I didn't sense there was a lot of traction in favor of a delay. They explored a lot of the existing concerns with the transition but I don't believe this committee's going to move to intervene” against it at this point. Senators who indicated they might be interested in seeking a transition delay had previously voice skepticism about the transition process, “so I don't think there was any momentum there,” Gross told us. “I think there is a very interesting split in tactics but there's still unanimity about the importance of ensuring governments stay out” of Internet governance."

Other Senate Commerce members indicated after the hearing their position on the IANA transition hadn't materially changed. “I just want to make sure that we don't cut off our nose to spite our face,” said Sen. Claire McCaskill, D-Mo. "If a delay is going to make it more difficult to get the multistakeholder program that will protect our interests, I don't want our delay to be an excuse for the Russians and the Chinese to say 'we've got to go to the U.N.' and remove us from the process as much as possible."

Sen. Kelly Ayotte, R-N.H., said she's inclined to continue to support NTIA moving ahead with the transition “provided the NTIA report finds that [ICANN] has met their criteria and that we're on track.” Ayotte said she does want further clarification “about what the understanding is to ensure the U.S. government's exclusive use” of the .gov and .mil top-level domains. Ayotte and other committee members raised concerns during the hearing about how U.S. government use of those TLDs would be affected by the IANA transition.

U.S. government use of the TLDs isn't affected by the transition as those domains “are not part of the IANA functions contract or related root zone management responsibilities,” an NTIA spokeswoman said in an email. The TLDs “cannot be sold or transferred without explicit agreement first from the current administrators of those domains -- namely, the U.S. government. However, in light of concerns posed by Congress, we have taken steps with ICANN that will reaffirm the U.S. government as the administrators of .mil and .gov, and that will require express approval from the U.S. government before any changes associated with the administration of .mil and .gov can be made.”