Can DoC Empower ICANN?
The answer is likely yes if no one questions highly suspect DOC
authority in this area. The big prize seems to be the root zone
files. If NTIA closes out is MOU by giving ICANN the root, it will
be exercising authority which most observers that we have talked with
don't believe it has. We asked an attorney with significant
experience in both DNS litigation and communications regulation for
his opinion. That opinion follows:
The basic problem with the approach of the Department of Commerce
(DOC) to privatization of DNS is that DOC lacks any recognized legal
authority either over the global Internet or the Internet's Domain
Name System. DOC's communications-related functions are limited by
statute to policy development, and (except for the assignment of
domestic telecommunications frequencies) do not include any
regulatory or rulemaking powers. The DOC White Paper is not, as DOC
emphasized, a mandatory rule, but rather only a general statement of
policy without the force or effect of law.
There is thus substantial doubt as to the legal authority of DOC and
the National Telecommunications & Information Administration (NTIA)
to direct, regulate or supervise the operations of ICANN. The
Memorandum of Understanding (MOU) between DOC and ICANN asserts that
"DOC has authority to participate in the DNS Project with ICANN"
under 15 U.S.C. 1512, 1525 and 47 U.S.C. 902. Yet even a superficial
examination of these statutes shows that they do not empower DOC to
control the Internet's DNS system or to regulate a US non-profit
corporation (such as ICANN) in setting rules for international
competition for Internet domain names.
As an executive branch agency, DOC's powers are controlled by its
so-called "enabling statute." 15 U.S.C. 1512 authorizes DOC to
"foster, develop and promote foreign and domestic commerce." 15
U.S.C. 1525 permits DOC to engage in "joint projects . . . on matters
of mutual interest" with nonprofit organizations. Even if the
international nature of gTLDs were within the scope of DOC's powers
over "foreign" commerce - an extra-territorial application of U.S.
law that appears to have no precedent - these general provisions do
not authorize DOC to promulgate rules for DNS, either directly or by
delegation of that power to a private corporation. The fact that DOC
and ICANN styled the MOU as a "joint project" cannot be bootstrapped
into the power to control DNS, for example by ordering NSI to
transfer the Root A server to ICANN.
A review of the DNS proceedings before DOC reveals that, until
recently, DOC itself appears to have agreed that it lacks the
affirmative power to regulate DNS operations on the Internet. The
February 1998 Green Paper initially proposed that DOC would
promulgate rules opening up new gTLDs and would order NSI to transfer
the root to a neutral third-party. Yet the June 1998 White Paper did
not establish any rules, and was issued solely as a "general
statement of policy." This is entirely consistent with the limited
scope of NTIA's statutory powers. As a part of DOC, NTIA is charged
with performance of DOC's "communications and information functions."
47 U.S.C. 901(b)(1). These include:
1. Serving as "the President's principal advisor on
telecommunications policies;"
2. Developing "telecommunications policies pertaining to . .
. the regulation of the telecommunications industry;" and
3."Coordinating the telecommunications activities of the
executive branch and assisting in the formulation of policies and
standards for those activities."
47 U.S.C. 901(b)(2)(C)-(I). Except for frequency assignment, NTIA
therefore does not create rules or regulations for any
telecommunications provider or industry segment. It's role is
advisory and policy development, not substantive regulation.
The history of DNS development over the past several years merely
underscores that until entry of the ICANN MOU, neither DOC nor NITA,
like their predecessor NSF, has asserted any substantive powers to
direct operation of the DNS system. In the 1998 Thomas v. NSI case,
NSF stated that the Cooperative Agreement, the NSI contract that has
since been transferred to DOC, requires NSI to "follow the policy
guidance of a non-governmental body [IETF] in consultation with the
Internet Assigned Numbers Authority, another non-governmental
entity." Likewise, the White Paper took pains to emphasize that it
was not "a substantive regulatory regime for the domain name system .
. . . [It] is not a substantive rule, does not contain mandatory
provisions and does not itself have the force and effect of law." 63
Fed. Reg. at 31748. It is thus quite curious, to say the least, that
the MOU describes the White Paper as providing legal authority for
DOC to "transition DNS management to the private sector."
When an agency acts in ways that exceed its statutory authority, the
Administrative Procedure Act (APA) allows the federal courts to
enjoin or set aside the agency's actions. The concept of a "general
statement of policy" is established by the APA, and an agency's
application of such a policy statement as a binding rule is clearly
unlawful. Should DOC attempt to transfer operations of the DNS root
to ICANN, therefore, it would be acting "ultra vires," or beyond its
legal powers. Moreover, in the event an APA challenge to DOC's
actions were initiated in a federal district court, the court would
have ample authority to prevent transfer of the root in order to
preserve the status quo pending the court's decision on the merits.
(In contrast, a newly initiated lawsuit aimed solely at securing a
preliminary injunction against transfer of the root would be more
difficult to win, because the law requires a plaintiff to show
"irreparable injury" before the grant of preliminary injunctive
relief.)
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The COOK Report on Internet Index to seven years of the COOK Report
431 Greenway Ave, Ewing, NJ 08618 USA http://cookreport.com
(609) 882-2572 (phone & fax) ICANN: The Internet's Oversight Board -
[EMAIL PROTECTED] NEW - Incompetence or Duplicity? ICANN
and it Allies' Stealth Agenda http://cookreport.com/isoccontrol.shtml
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