I doubt that.

I think the situation is either that the Senator from Alberta does not understand or its a deliberate ploy for political advantage.

(That is an .OR. not an .XOR. operation)

I do have doubt as to the legality of the transition, but they do not extend as far as its constitutionality.



Nigel

On 28/09/15 18:54, Paul Rosenzweig wrote:

The below from Senator Cruz is self-explanatory.  I have no doubt it
will make Dr. Lisse very happy.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweigesq@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

Link to my PGP Key
<http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>

ICYMI- U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary
Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee
Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa
(R-Calif.), Chairman of the House Judiciary Subcommittee on Courts,
Intellectual Property, and the Internet, sent a letter to the Government
Accountability Office (GAO) requesting an affirmative determination of
whether the Obama Administration’s plan to transfer U.S. oversight of
the Internet violates the Constitution.

/The Wall Street Journal'/s columnist L. Gordon Crovitz reported on the
letter today in his Information Age column, “Not Obama’s to Give Away.”
<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189>

*From:*Press, Cruz (Cruz)
*Sent:* Monday, September 28, 2015 11:54 AM
*Subject:* RELEASE: Sen. Cruz Leads Bicameral Letter Asking GAO to
Determine Whether Obama Administration Has Power to Give Away the Internet

*UNITED STATES SENATE*

*Sen. Ted Cruz Press Office*

**

*FOR IMMEDIATE RELEASE*

*Cruz Press Office: 202-228-7561*

Phil Novack: phil_novack@cruz.senate.gov
<mailto:phil_novack@cruz.senate.gov>

September 28, 2015

*Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama
Administration Has Power to Give Away the Internet*

/Judiciary Chairmen Grassley and Goodlatte, with Rep. Issa, join Cruz to
get answers on whether Administration’s plan violates the Constitution/

//

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas), along with Senate
Judiciary Committee Chairman Charles Grassley (R-Iowa), House Judiciary
Committee Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa
(R-Calif.), Chairman of the House Judiciary Subcommittee on Courts,
Intellectual Property, and the Internet, sent a letter to the Government
Accountability Office (GAO) requesting an affirmative determination of
whether the Obama Administration’s plan to transfer U.S. oversight of
the Internet violates the Constitution.

/The Wall Street Journal'/s columnist L. Gordon Crovitz reported on the
letter today in his Information Age column, “Not Obama’s to Give Away.”
<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189>

Sen. Cruz said: “Under Article IV, Section 3 of the Constitution,
Congress has the exclusive power ‘to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States.’ If the contract governing U.S.
oversight of the Internet is indeed government property, the
Administration’s intention to cede control to the ‘global stakeholder
community’ -- including nations like Iran, Russia and China that do not
value free speech and in fact seek to stifle it -- is in violation of
the Constitution and should be stopped.”

The letter is being sent at a time when efforts by both the
Administration and Congress, via the DOTCOM Act, are underway to
facilitate the transition of U.S. control over the Internet without an
affirmative vote from Congress. In another action to protect U.S.
control of the Internet, Sen. Cruz recently filed the DOTCOM Act
<http://www.cruz.senate.gov/?p=press_release&id=2402> as an amendment to
the highway reauthorization bill the Senate considered in July. Cruz's
amendment is identical to the original version of the DOTCOM Act being
considered by the Senate with one exception: it would require Congress
to have an affirmative up or down vote on the Obama Administration's
plan to give away the Internet.

Read the full text of the Cruz-Grassley-Goodlatte-Issa letter here
<http://cruz.senate.gov/files/documents/Letters/20150922%20Grassley%20Cruz%20Goodlatte%20Issa%20GAO%20Request%20ICANN.pdf> and

below:

September 22, 2015

Mr. Gene Dodaro

Comptroller General

U.S. Government Accountability Office

441 G Street, N.W.

Washington, DC  20548

  Dear Mr. Dodaro:

On March 14, 2014, the National Telecommunications and Information
Administration (“NTIA”) announced its intent to relinquish oversight of
Internet domain name functions to the “global stakeholder community.”
This proposed transition raises questions about NTIA’s authority to
transfer possession and control of critical components of the Internet’s
infrastructure to a third party.

The Internet as we know it has evolved from a network infrastructure
first created by Department of Defense researchers. One key component of
that infrastructure is the root zone file, which the federal government
currently designates as a “national IT asset.”[1] Creation of the root
zone file was funded by the American taxpayer and coordinated by the
Department of Defense, and the file has remained under United States
control ever since.

Under Article IV, Section 3 of the Constitution, Congress has the
exclusive power “to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the
United States.”  One question arising from NTIA’s decision to transfer
its Internet oversight functions to a third party is whether NTIA may
relinquish possession and control of the root zone file—or any other
similar component of the Internet that was financed and developed by the
United States—without authorization from Congress.  This concern was
raised in 2000 by the Government Accountability Office (“GAO”), which
questioned whether NTIA could relinquish authority over the root zone
file and concluded that it was “unclear whether such a transition would
involve a transfer of government property to a private entity.”[2] The
2000 GAO report further detailed that the Department of Commerce advised
the GAO at the time that “we have not devoted the possibly substantial
staff resources that would be necessary to develop a legal opinion as to
whether legislation would be necessary” to authorize transfer of the
root zone file. Congress should be made aware of the legal status of the
root zone file—or any other potential government property—before it
makes any final decisions about whether to transfer the government’s
Internet oversight functions to a third party.

Some observers and parties involved in the proposed transfer have
asserted that the termination of NTIA’s contract with ICANN would not
result in the transfer of United States Government property.[3] Others
believe that termination of this contract would result in government
property being transferred to ICANN and point to a number of factors
that would indicate that the root zone file and other contractual
deliverables are property of the United States.  Supporters of this
position point to the fact that the United States acquired title to the
root zone file because it was invented pursuant to Department of Defense
contracts.[4]  In addition, the United States has long claimed ownership
or control over the root zone file.  For example, President Clinton’s
Internet “czar” Ira Magaziner asserted United States ownership of the
entire Domain Name System because “[t]he United States paid for the
Internet, the Net was created under its auspices, and most importantly
everything [researchers] did was pursuant to government contracts.”[5]
Additionally the Commerce Department’s contract with ICANN explicitly
declares that “[a]ll deliverables provided under this contract,”
including the “automated root zone,” are “the property of the U.S.
government.”[6] And Verisign and ICANN contracts make clear that changes
to the root zone file cannot be made without approval of the Department
of Commerce.[7] Congress has also been actively engaged in managing the
root zone file.  Recently, it enacted the Consolidated and Further
Continuing Appropriations Act of 2015, which explicitly prohibited the
Commerce Department from using federal funds to relinquish stewardship
of the domain name system, “including responsibility with respect to the
authoritative root zone file.”[8]

Given this history, we are concerned that NTIA might potentially
relinquish ownership of some form of United States property. To inform
the Congress so that it may take any necessary and appropriate steps
regarding NTIA’s planned transition of the IANA functions, we would like
the GAO to conduct a review to address a number of specific questions.

1. Would the termination of the NTIA’s contract with ICANN cause
Government property, of any kind, to be transferred to ICANN?

2. Is the authoritative root zone file, or other related or similar
materials or information, United States government property?

3. If so, does the NTIA have the authority to transfer the root zone
file or, other related materials or information to a non-federal entity?

Please include in this report a description and analysis of the relevant
legal authorities and case law dealing with the transfer of United
States Government property. We understand that to perform this work, GAO
will need to conduct both significant audit work and complex legal analysis.

Please contact Jonathan Nabavi (Chairman Grassley), Sean McLean (Senator
Cruz), Vishal Amin (Chairman Goodlatte), and Veronica Wong (Congressman
Issa) of our staffs if there are questions regarding this request.

Sincerely,

______________________                                                    _________________________

Charles E.
Grassley
Ted Cruz

Chairman
United States Senator

Senate Committee on the Judiciary

_______________________
__________________________

Bob
Goodlatte
Darrell Issa

Chairman
                                                             Member of
Congress

House Committee on the Judiciary

[1]See, Verisign Company Information:
http://www.verisign.com/en_US/company-information/index.xhtml

[2]U.S. Government Accountability Office., GAO-B-284206, Department of
Commerce: Relationship with the Internet Corporation for Assigned Names
and Numbers (2000)

[3]Letter from Lawrence Strickling, Assistant Sec’y for Commc’ns and
Info., U.S. Dep’t of Commerce, to Representative Sean Duffy &
Representative James Sensenbrenner, U.S. House of Representatives (June
11, 2015)

[4]U.S. Congressional Research Service. Internet Governance and the
Domain Name System: Issues for Congress (R42351; August 18, 2015), by
Lennard G. Kruger

[5]Jack Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a
Borderless World 41 (2006)

[6]Internet Assigned Numbers Authority Functions Contract between U.S.
Department of Commerce and Internet Corporation for Assigned Names and
Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012.

[7]See, Amendment 11 of the Cooperative Agreement NCR-9218742 between
the U.S. Department of Commerce and Verisign, Inc. Also see, Internet
Assigned Numbers Authority Functions Contract between U.S. Department of
Commerce and Internet Corporation for Assigned Names and Numbers.
Contract Number SA1301-12-CN-0035. October 1, 2012.

[8]Consolidated and Further Continuing Appropriations Act, 2015, Pub. L.
No 113-235, § 540, 128 Stat. 2130, 2217 (Dec. 16, 2014)

###

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