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FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

Philip S. Corwin

The U.S. Government has been operating so far in Fiscal Year 2016, which began on October 1st, with funding provided by two continuing Appropriations bills. The last one passed on December 11th and provides funding through midnight tonight, December 16th. Meanwhile, bipartisan Senate and House leadership, Appropriations Committee members, and Chairs of authorizing committees have been negotiating an omnibus Appropriations bill, along with a separate revenue package of tax provisions, behind closed doors.

The text of the monumental 2009-page "Consolidated Appropriations Act, 2016" was just released early this morning and is available here. Although U.S. government funding expires at midnight tonight, it is not yet clear whether it will voted upon by the House and Senate today or later in the week; in the latter case, another two-day funding extender will likely be passed today.

A continuation of the IANA transition freeze is contained in in Title V of Division B, "General Provisions (Including Rescissions)". It reads as follows:

SEC. 539. (a) None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration, during fiscal year 2016, with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions. (b) Notwithstanding any other law, subsection (a) of this section shall not apply in fiscal year 2017.

The FY15 funding bill had contained almost identical language, and in January 2015 NTIA head Lawrence Strickling publicly stated:

We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract's current expiration date of September 30, 2015. Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA's role in approving changes to the authoritative root zone file prior to September 30. On these points, there is no ambiguity.

The only difference between the FY 15 and 16 IANA transition freezes is that subsection b of the former reads "Subsection (a) of this section shall expire on September 30, 2015", while in the latter it reads "Notwithstanding any other law, subsection (a) of this section shall not apply in fiscal year 2017". The difference appears to have more to do with the intent of the appropriators rather than a significant variance in legal effect, providing a stronger indication that they do not intend to extend the freeze beyond September 30, 2016. But, even though the subsection contains the clause "Notwithstanding any other law", there is no legal impediment to Congress returning to this subject next year and extending the freeze into FY 17.

The reference to "any other law" may also contemplate eventual enactment of the DOTCOM Act, which would provide Congress with thirty legislative days to review any final transition proposal received from the NTIA. In that event the language could be read as stating that even if the DOTCOM Act is enacted and the thirty legislative days it provides for extends beyond September 30th of next year, that the NTIA would nonetheless be free to facilitate the transition starting on October 1st.

There was strong speculation due to many indications that an attempt would be made to embed the DOTCOM Act in the Appropriations bill as an end run around the hold placed on the bill, and its potential filibuster, by Sen. Ted Cruz, who wants to amend DOTCOM to require an affirmative Congressional vote for the transition to proceed. The author has not reviewed every one of the funding bill's 2009 pages — but has reviewed Division O (Other Matters) as well as its Department of Commerce provisions in Division B (the NTIA section starts p. 115; all DOC provisions run from pp. 109-132). The DOTCOM Act cannot be found there, and there is no other part of the legislation in which it would likely be placed.

Sen. Cruz has been rising rapidly in the polls among contenders for the Republican nomination for President, and would likely welcome the opportunity for a Senate floor confrontation in which he could both oppose the Obama Administration as well as differentiate himself from other Republican Senators in the White House race. That political consideration may well prevent Senate leadership from ever calling up the DOTCOM Act, which passed the House earlier this year.

However, as a practical matter, the transition freeze extension provides Congress with essentially the same review period as would have been assured by DOTCOM's enactment, provided that the timetable for delivery of the CCWG's Accountability Proposal to the ICANN Board remains unchanged. It remains to be seen whether news of the transition freeze extension will affect the timetable for Chartering Organization/community/general public review of the Proposal; the comment period closes on December 21st, and subsequent delivery to the ICANN Board is targeted for January 22, 2016. The Board filed its comments on the pending third proposal on December 14th and some of its positions have sparked some heated email discussions within the ICANN community, but there is no present sign that a timetable extension is likely.

With the freeze extended until September 30th of next year, it will now be impossible to avoid the convergence of the IANA transition with the height of political sparring in next year's U.S. Presidential and Congressional elections, as October 1st will mark the final weeks of the campaign season. The Obama Administration may therefore decide to postpone the actual transition until the post-election "lame duck" period of November-December 2016.

While not directly related to ICANN or the IANA transition, one major piece of Internet-related policy legislation did find its way into the Appropriations bill — the Cybersecurity Act of 2015 constitutes the entirety of its Division N. Somewhat differing versions of the Cybersecurity legislation had already been passed by the Senate and House, and this final version reconciles those differences. The final language provides U.S. companies with liability protection for the sharing of cyberattack data with other companies and the Federal government; establishes new protections for electronic data; and establishes an information-sharing portal within the Department of Homeland Security.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own.

Related topics: ICANN, Internet Governance, Policy & Regulation

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