Burns to Commerce Secretary
March 21, 2001
The Honorable Don Evans
U.S. Department of Commerce
14th Street & Constitution Avenue NW
Washington, D.C. 20230-0001
Dear Mr. Secretary:
As you may know, the Senate Communications Subcommittee, which I chair, recently held a hearing on the governance of the Internet, especially thorugh the Internet Corporation for Assigned Names and Numbers (ICANN).
Serious questions were raised at this hearing and a similar House hearing. They centered on whether the delegation of authority over the domain name system (DNS) from your Department to ICANN is legal (especially as ICANN has exercised that authority), whether safeguards for due process and judicial review are adequate and whether ICANN has shown that they are the appropriate body to manage the DNS.
I have asked the General Accounting Office to examine one of the most serious charges that have been raised, whether some of ICANN's recent actions, such as the selection of new generic top-level domains and the creation of a Uniform Dispute Resolution Policy, have been legal under the non-delegation doctrine of the U.S. Constitution, the Administrative Procedures Act and other federal statutes. I also believe that further scrutiny of ICANN's mandate and activities are warranted through a special commission, Congressional hearings or other avenues. I intend to schedule additional hearings before my Subcommittee on this issue and I hope your Department will share your views with us then.
In the meantime, I urge you to refrain from taking any major steps to further empower or delegate authority to ICANN. The supervision of the domain name system by the Department of Commerce has brought stability to the biggest marketplace in the world, the Internet. That stability could be threatened by a policymaking process moving forward under a legal cloud.
I urge you to join with me in taking a fresh look at how the Internet works and should be governed. I also urge you to refrain from taking any hasty actions until such a review has taken place and you have had the opportunity to brief the appropriate Congressional committees of jurisdiction including the Senate Communications Subcommittee.
United States Senator
Burns to GAO
March 21, 2001
Mr. David M. Walker
General Accounting Office
441 G Street N.W.
Washington, D.C. 20548
Dear Mr. Walker:
As you know, the Senate Communications Committee, which I chair, recently held a hearing on the governance of the Internet Corporation for Assigned Names and Numbers (ICANN).
We focused on three important issues:
(1) whether the delegation of authority over the domain name system (DNS) from the Department of Commerce (DOC) to ICANN is legal;
(2) whether ICANN is the appropriate body to manage the DNS; and
(3) whether ICANN has performed well
This hearing reinforced my belief that the issue of Internet governance, how it has been delegated and how it should be managed, has not received the attention it deserves. I believe that your office can help us with this challenge.
The General Accounting Office, in response to a Congressional request, issued a report in July on the relationship between DOC and ICANN, including the issue of whether the formation of ICANN was in accordance with the Administrative Procedures Act (APA). Your report concluded that APA does not apply to "general statements of policy" like DOC's "White Paper". You cited DOC's view that "the policy statement only advised the public of the manner in which the Department would prospectively undertake the transition" of control over the DNS. You said: "We agree with the Department that the policy statement provided the public only with a general framework on how the Department intended to proceed with the transition."
Serious questions continue to be raised, however, about the legality of DOC's delegation of authority to ICANN in practice. ICANN has undertaken substantive measures such as selection of new generic top-level domains (gTLDs) and imposition of a uniform dispute resolution procedure for domain name disputes in the current gTLDs.
I hereby request that your office take the next step from your July report and assess whether the actions of ICANN have been legal under the non-delegation doctrine of the U.S. Constitution, the APA and other federal statutes. I urge you to review the articles in the October, 2000 volume of the Duke Law Journal on this subject, especially the article "Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution" by Professor A. Michael Froomkin, who testified before my Subcommittee.
Thank you for your attention to this request.
[The article referred to in Sen. Burns's letter, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), is available in .pdf and HTML. It is a little long, so it may take some time to download on a slow link.]
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