Issues

Gov’t Missed Major Threat to Internet Independence

Critics worry that foreign nations may take control of web as U.S. steps back

A server farm in Cleveland, Ohio / AP

The U.S. government did not conduct a sufficient analysis of the consequences of giving up control of the corporation responsible for assigning web addresses, increasing the risk that foreign governments will eventually gain control of the Internet, according to documents obtained by the group Americans for Limited Government.

The National Telecommunications and Information Administration currently has authority over the Internet’s domain name system through a contract with a private, international organization called the Internet Corporation for Assigned Names and Numbers, or ICANN. The contract is set to expire on September 30. The agency has not decided whether to extend the contract.

Americans for Limited Government, a conservative group, requested records through the Freedom of Information Act to see if the agency had completed any analysis concerning antitrust issues for ICANN if the agency relinquishes its control over the Internet.

Antitrust laws promote competition and prohibit monopolies, but do not apply to the federal government. While most private companies can be taken to court if they engage in monopolistic behavior, ICANN’s contract with the U.S. government shields it from antitrust lawsuits, according to Brett Schaefer, a senior research fellow at the Heritage Foundation.

"If the contract expires, it increases the likelihood that ICANN will face lawsuits involving its monopolistic position, which creates a legal vulnerability for ICANN," Schaefer said. "This places ICANN in a bit of a conundrum because it could spend considerable time and resources fighting in courts and possibly paying penalties."

"To protect itself, ICANN could seek out protection from antitrust in another way than the U.S. government contract through a relationship with the [UN International Telecommunication Union] or other UN organizations, which also have legal protections and immunities under international law," he said.

There is no indication that the agency has conducted legal or policy analysis related to ICANN antitrust issues, according to the documents obtained by Americans for Limited Government.

"Because the NTIA failed to explore the antitrust issue and ask Congress to pass legislation granting ICANN some limited antitrust protections before our relationship ends, they are placing ICANN in legal jeopardy," Schaefer said. "The irony is that this negligence could lead ICANN to explore a relationship with the UN or the ITU, which the NTIA says that it strongly opposes and most in the ICANN community agree would be the worst possible outcome because it would create greater opportunity for governments to control Internet content."

Rick Manning, president of Americans for Limited Government, said the Obama administration has not adequately considered the consequences of a lapsed contract between ICANN and NTIA.

"[The agency’s] admission that they failed to consider the antitrust ramifications of transitioning governance over the Internet’s domain name system to ICANN since 2014, covering the entire period of the transition, is simply stunning," Manning said. "The politically blinded Obama administration missed the obvious point that ICANN loses its anti-trust shield should the government relinquish control over the property to them."

"The admission that anti-trust ramifications were not considered demonstrates that the [agency] failed again to follow Congress’ mandate that they present a report on what could go wrong should the giveaway move forward," Manning said. "Their failure to even stumble across this problem clearly demonstrates that the Obama Administration has given zero thought to the potential downside of this giveaway."

The White House did not respond to requests for comment.