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CEO Chehade, Senator Cruz, and the IANA Transition End Game

Philip S. Corwin

On February 4, 2016, U.S. Senator (and Republican Party Presidential nomination contender) Ted Cruz, joined by Senators James Lankford and Michael Lee, dispatched a letter to ICANN CEO Fadi Chehade stating that "we were surprised and dismayed to learn that you have agreed to co-chair a high-level advisory committee for the World Internet Conference, which is organized by the Chinese government, while you serve as the Chief Executive Officer of ICANN under contract with the United States Government" [see ICANN Hugs China's Multilateral Internet Governance Initiative]. The letter continued by posing a series of nine questions, two with subparts, drafted with the aim of providing the Senators with "a better understanding of the potential implications for the United States Government of your service on the advisory committee for the World Internet Conference". The letter requested that CEO Chehade "provide a response to the following questions as soon as possible, but no later than 9:00 a.m. on Friday, February 19, 2016".

On February 19, 2016, in compliance with the Senators' deadline, CEO Chehade sent a reply to their inquiry. However, this reply was not fully responsive to the discrete questions that they posed. Rather, it was a narrative that touched on some of the questions, but that also pushed back against the inquiry, stating:

ICANN's participation in global conferences should not be in any way used to distract us from the commitment the U.S. Government has made to the world since 2000 to remove the central role of governments from the technical administration of the one global Internet. Failure to deliver on this commitment in 2016 would have grave repercussions on the U.S. and global economies and will undermine multistakeholder governance, potentially leading to the fragmentation of the Internet.

That less than complete and somewhat argumentative response may have implications for Congressional review of the IANA transition and ICANN accountability proposals expected to be delivered to NTIA this month.

But before addressing that, I shall digress a moment —

* * *

Over the course of my career in Washington I have both prepared such questions on behalf of Senators for whom I have worked, as well as composed answers to such inquiries for both myself and clients. While those questions have generally been posed as detailed follow-ups to oral hearing testimony, in some client instances they have also been related to independent inquiries in advance of potential hearings, or as part of ongoing investigations.

While one is not compelled to respond to such inquiries absent a subpoena, U.S. Senators generally have considerable power, outsized egos, and limited patience. And the Senate staff members who prepare such questions and review the submitted answers are generally bright, aggressive, and ambitious — and have no hesitation about advising further inquiry if they feel that the answers are inadequate.

For those reasons — as well as the general principle that it is generally best to give up all the information at once in such situations, rather than have it dribble out over time under further coercion — I generally counsel clients to fully respond to each and every question as completely as possible.

Of course, if one does not have the information necessary to provide an answer, that should be clearly stated. And if one feels that the question goes too far, and intrudes into an area that is confidential, privileged, or legally barred, that too can be asserted.

I have no idea whether CEO Chehade sought assistance in preparing his reply, what advice may have been given if he did so, or whether he followed or rejected such advice. His immediate, day-after-receipt reaction to the Senators' inquiry was made clear in a February 5th question-and-answer session held in Los Angeles with members of the GNSO's Non-Contracted Party House in which he stated during a dialogue (starting at around the 23:00 mark of the archived video):

And you know that this letter is not driven by anyone really worried about the transition. This is someone really worried about politics. So let's not bring politics into the transition… Let's resist bringing the politics of our lovely capital into this process… I think everyone knows this is political, even those in his own party.

That view may have shaped the submitted reply — although he also stated in the course of the same dialogue, "We will answer all these questions… And we will respond to the questions fully, to the Senators' full satisfaction."

I do know that in the unlikely event that he had requested my advice, I would have counseled a different course than the one chosen. That is because, in addition to the general approach just outlined, and whatever one's views on his policy stands, Sen. Cruz has an impressive biography, including serving as a clerk to the Chief Justice of the U.S. Supreme Court, and later winning multiple oral arguments before it while serving as Solicitor General of Texas. He is not a Senator to be taken lightly.

* * *

Returning to a review of CEO Chehade's February 19th reply letter, one finds no specific answers to such questions posed by the Senators as:

  • Please provide a yes-or-no answer to the following question: Did the advisory committee meet in Wuzhen during the second World Internet Conference? If yes, did you participate? What was discussed during the meeting? Specifically, did the advisory committee discuss the IANA transition or the role of the United States Government? Do you believe that advisory committee participants share the United States' view of a free and open Internet?
  • When did you first notify ICANN's Board of Directors that you had agreed to serve as a co-chair of the advisory committee for the World Internet Conference?
  • Have you notified the National Telecommunications and Information Administration (NTIA) or any official within the United States Government regarding your commitment to serve as a co-chair of the advisory committee? If yes, please list who you notified and the date of the notification.
  • Given the Chinese government's history of censorship and suppression of free speech, is it appropriate to participate in the World Internet Conference while serving as the Chief Executive Officer of ICANN?   Do you believe that your attendance and participation in the World Internet Conference makes ICANN complicit in the Chinese censorship regime?

Regardless of the appropriateness or relevance of these questions, there is no response to them, and no rationale provided for the lack of response.

Four days after CEO Chehade's response was dispatched, Sen. Cruz's office issued a press release indicating that he was not at all pleased with it, stating:

Either the World Internet Conference and the People's Republic of China have misreported the events that took place during their own conference or Fadi Chehade isn't being completely honest with the United States Senate. While Chehade continues to state that his first meeting won't take place until later this year, the Xinhua News Agency, the official press agency of the People's Republic of China, reported on December 17, 2015 that, 'The advisory committee held its first meeting on the sidelines of the second World Internet Conference in Wuzhen of east China's Zhejiang Province. Jack Ma, founder of China's Internet giant Alibaba, and Fadi Chehade, president and CEO of ICANN, act as co-chairman of the advisory committee.' It should also be noted that Chehade has admitted that he has entered into an arrangement while still serving as the CEO of ICANN and performing under a contract with the United States government, through which his future travel costs to the Chinese government's state-sponsored World Internet Conference will be compensated. Travel compensation from the Chinese government can be a form of personal conflict of interest, which could impair Chehade's ability to act impartially and in the best interest of the government when performing under the contract. As such, Chehade should recuse himself from all ICANN decisions that could impact the Chinese government, which include all negotiations and discussions pertaining to the Internet Assigned Numbers Authority (IANA) transition.

Unless ICANN has undisclosed plans to consult with Mr. Chehade on the transition after his mid-March departure from the CEO role, the Senator's recusal request will be a moot point in two weeks. Beyond that, it is as yet unknown whether Senator Cruz and his colleagues will continue their efforts, and seek to extract more specific answers from Mr. Chehade or ICANN itself. And, while the IANA transition has yet to become part of the Presidential campaign, that could always change — protesting "Obama's Internet giveaway" (as one editorial writer has labeled it) would probably play well with Republican primary voters.

As for the present legislative situation, the DOTCOM Act, which would have mandated a thirty legislative day review period after Congress' receipt of an approved transition and accountability proposal from the NTIA, appears to be dead due to Senator Cruz's procedural "hold” on it, whereby he reserved his right to speak to it and offer amendments if it is brought to the Senate floor. That House-passed bill, however, is not the most relevant consideration for what will happen when the transition proposal arrives on Capitol Hill, as it would not require affirmative Congressional approval for the transition — which is precisely Senator Cruz's grievance with it.

Presuming delivery of the transition and accountability proposals to the NTIA later this month, Congress will have more than enough time to review them even absent enactment of DOTCOM — because the FY 2016 appropriations legislation bars the transition from occurring through September 30, 2016. Any lingering Congressional concerns about the transition, or just pure election year politics, could incent Congress to extend the freeze past the November elections, or even past the inauguration of the next President in January 2017.

NTIA is on the record that the appropriations freeze, so long as it stays in effect, bars it from completing the transition. Yet in a very recent hearing of the Congressional Subcommittee that controls appropriations for the Department of Commerce, Secretary Pritzker was somewhat more equivocal when questioned on her recognition of the prohibition's effect. Given the Obama Administration's past record of reversing its public position on the effect of legislation, and its proclivity for forcing action via Executive Orders, it is not unthinkable that, right up to the final day of his term, the President might order the transition to occur. That in turn could prompt a Congressional lawsuit that included a request for immediate injunctive relief, with uncertain results beyond making the transition a significant political, and legal, football.

The ongoing Presidential contest may also impact the transition's prospects. On March 1st , in the initial "Super Tuesday" round of multiple Presidential primaries, Sen. Cruz won his home state of Texas as well as the neighboring state of Oklahoma, and has emerged for now as the number two contender for the Republican nomination, with billionaire real estate developer Donald Trump retaining the lead. The next "Super Tuesday" round occurs on March 15th.

For purposes of this article, the key point is that by the summer, when Congress will likely be reviewing the Transition/Accountability Proposal, and when the appropriators may start to ponder whether the IANA transition freeze should expire or be extended, Sen. Cruz may be the Presidential nominee of the Party that controls both the House and Senate — or he may be out of the race and back in the Senate with plenty of time available to intervene on issues that concern him. In either case, it would probably have been best not to antagonize him, as he was already an IANA transition skeptic prior to the WIC meeting's Advisory Committee announcement and his resulting exchange of letters with departing CEO Chehade.

It's rather too late to try to keep politics separated from the IANA transition. The transition process was initiated by CEO Chehade on behalf of ICANN through capitalization of the global political fallout from the Snowden revelations; the accompanying accountability proposal has been developed with a constant appraisal of Washington's political winds, and recognizing the paramount concern of the NTIA and Congress that ICANN not fall under multilateral governmental control; and its ultimate approval or rejection in Washington cannot be isolated from the politics of an election year in which control of the White House and Congress hang in the balance.

So stay tuned for the next episode in this continuing drama.

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. Visit Page
Related topics: ICANN, Internet Governance
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Next episode ... John Levine  –  Mar 04, 2016 9:01 AM PDT

Cruz fired back on Thursday, this time with a letter to Steve Crocker with yet more questions. What do you think?

http://www.cruz.senate.gov/?p=press_release&id=2603

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