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    USA Goverment Relations Senator Burns Queries Legality of ICANN-DoC Relationship
    posted by michael on Tuesday March 27 2001, @06:07AM

    In a pair of letters written March 21 to the Secretary of Commerce and to the GAO, Senator Conrad Burns, the Chair of the Senate Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, has queried both the adequacy of ICANN's performance and the legality of ICANN's relations with the U.S. Department of Commerce.

    In one letter, Senator Burns asks the Secretary of Commerce to refrain from any "hasty actions" and "any major steps to further empower or delegate authority to ICANN." Meanwhile, the letter to the GAO asks it to supplement its earlier report on ICANN's formation with a new report focused on ICANN's performance, notably,

    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;
    3. whether ICANN has performed well.
    The letters build on the hearing held before Sen. Burns's subcommittee on Feb. 14, and similar hearings before the House Committee on Energy & Commerce Subcommittee on Telecommunications on Feb. 8.

    UPDATE: Full text of both letters (retyped from a fax) now available inside.



    Burns to Commerce Secretary

    March 21, 2001
    The Honorable Don Evans
    Secretary
    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.

    Sincerely,



    Conrad Burns
    United States Senator

    Burns to GAO

    March 21, 2001

    Mr. David M. Walker
    Comptroller General
    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.

    Sincerely,



    Conrad Burns
    Chairman

    [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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    This discussion has been archived. No new comments can be posted.
    Senator Burns Queries Legality of ICANN-DoC Relationship | Log in/Create an Account | Top | 7 comments | Search Discussion
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    .XXX Domain Names
    by ClientCorp on Tuesday March 27 2001, @09:58AM (#455)
    User #2762 Info
    I fully support the Senator's Action And Believe That Competion Is The Key To Any Successful Business. I Further Applaud New.Net Work To Add New Extensions To Protect Our Children!

    With .XXX Domain Names - ISP's Will Have The Ability To Filter Adult Material! And NOT Allow A Child Looking Up www.WhiteHouse.com Access To A Porn Site!

    ICANN - LEAD OR GET OUT OF THE WAY!
    [ Reply to This | Parent ]
    Re: Clean Sheets for everyone
    by michael (froomkin@lawUNSPAM.tm) on Wednesday March 28 2001, @02:49PM (#459)
    User #4 Info | http://www.discourse.net/
    You may want to look at this: ".xxx Considered Dangerous?".

    Also, can someone explain to me by what method (and under whose law?) one would force existing pornmeisters in .com and/or various ccTLDs to move to .xxx or whatever? Seems like a pipe dream to me.
    [ Reply to This | Parent ]
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