International Governance

Legal Limits on the Transfer of Control to ICANN

By Paul Rosenzweig
Wednesday, March 19, 2014, 10:00 AM

As I wrote earlier this week, the big news recently in cyberspace was the announcement by the Department of Commerce, National Telecommunications and Information Administration, that it planned to effectuate a transfer of control of the Internet Assigned Numbers Authority to the the Internet Corporation for Assigned Names and Numbers, a non-profit corporation.  At the time I expressed some doubts as to whether this was good policy or not.

Now, thanks to L. Gordon Crovitz of the Wall Street Journal, I also wonder if it is lawful.  Crovitz sites a GAO study from the Office of the General Counsel at the Government Accountability Office.  The study dates from 2000, when ICANN was first incorporated (and when it was still the General Accounting Office).  Here's the critical passage:

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.
If I were Congress, I'd ask the current General Counsel of the Department of Commerce and of the GAO to take a look at the question.