Does the IANA transition constitute a transfer of US Government Property?

Early this year, it appeared as if the U.S. Congress was going to be taking an intelligent and constructive approach to the IANA transition. Led by Senators Thune and Rubio, Congress asserted its oversight authority over NTIA to help ensure that the transition settlement provided adequate accountability mechanisms for ICANN. A GAO report ordered by Congress last year and published September 17 took a similarly constructive approach, providing legislators with solid background information about the transition and a structured framework that NTIA could use to evaluate the risks posed by the proposals of the IANA Stewardship Coordination Group and the Cross Community Working Group on Enhancing ICANN accountability.

But a September 22 letter from Congressmen Grassley, Goodlatte, Issa and Senator Cruz has changed the tune; now it’s more like “send in the clowns.”

This letter asks for yet another GAO report on the transition. Specifically, the Congressmen want to assert that the U.S. government “owns” the root zone file, and thus reframe the transition as a “transfer of U.S. government property to a private entity.” Since such a transfer would require Congressional approval, this is Congress’s new way of attempting to assert its authority over the transition. And it is clear from the letter that by asserting this authority certain representatives want to prevent the transition from happening.

The letter asks three 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 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 material or information to a non-federal entity?

We here at IGP can save Congress and the GAO a lot of time and trouble. We can answer these questions, and we’ll do it at a fraction of the price (we’ll send a bill later to Senator Cruz’s campaign committee) and much, much faster. The answer to the first two questions is ‘No.’ Once those questions are answered in the negative, the third question becomes irrelevant.

To support our answers, let’s begin by taking up the question: What is the ‘property’ that the transition would transfer? There are only two possible candidates: one is the DNS root zone file (RZF), the other is the physical and software facilities involved in operating or publishing the authoritative root zone.

Is the RZF property? And if it is, can it be considered U.S. government property?

The Congressmen may need some education regarding the RZF and its functionality. The RZF is a text file that contains a list of top level domains and information about the nameservers that support them. You can look at it here. Where does this data come from? It comes from the registries who run top level domains. They all need to get this data in the RZF or their domains don’t work on the Internet. The registries who supply the data that is compiled in the RZF come from all over the world (in other words, they are not all in the U.S.A.). They give it to IANA, which updates the RZF and sends it off to NTIA for approval and to Verisign for publication.

The RZF is not like a copyrighted movie or photograph, to which an owner restricts access so that users can be charged. It is, rather, a pooling of data about private name servers into a publicly accessible resource so that any domain name user in the world can connect to any other domain name user in the world. The whole point of pooling data about registries’ privately run name servers into the RZF is to get it openly and globally shared.

The U.S. government does not own the RZF and nothing in its contractual relations with ICANN or Verisign asserts that it does. By ending the IANA contract, the US government is not transferring “ownership” of the RZF to a private party; it is ending its contractual authority to approve any changes to the RZF before Verisign publishes it. This approval authority, by the way, does not even live in the IANA functions contract. It is part of NTIA’s Cooperative Agreement with Verisign. The amendment asserting U.S. approval authority was inserted into that agreement without Congressional approval, and it is hard to understand why it could not be eliminated without its approval. As a GAO report from 2000 concluded:

The Department undertook its domain name system management responsibilities to carry out the President’s directive to support efforts to privatize the domain name system. Under these circumstances, neither the Department nor any other federal agency is under an explicit statutory obligation to manage the domain name system including control over the authoritative root server

Nothing in the IANA functions contract asserts federal ownership of the RZF. On page 31 of the contract (section F.5) there is a statement that “All deliverables provided under this contract become the property of the U.S. Government.” The deliverables are specifically enumerated in section F.4. They include things like an audit report, a customer service survey, instructional documentation for users, a root zone management dashboard, and similar kinds of reports. The root zone file is not listed as a deliverable. No other part of the IANA Functions Contract can be construed to give the federal government an ownership right to the RZM.

What about the materials and facilities that make up the infrastructure for publishing the RZF? There are 13 root servers that publish the RZF. Most of that infrastructure for publishing the root zone is owned by private organizations both inside and outside the United States. There are three exceptions: root servers are run by NASA, the U.S. Army Research Lab and the Defense Department NIC. But these federally-operator root servers would not be transferred or changed by the IANA transition. They would continue to publish the authoritative RZF as before.

This attempt to find an excuse to block the transition is likely to fail on the merits. But aggressive assertions by rightwing politicians that the U.S. “owns” the DNS, or the entire Internet, are destabilizing and counterproductive. They actually help to further the agenda of the governments who want to undermine the private sector-based Internet governance model on which ICANN is based. Assertions of control by one state cannot help but produce equal and opposite reactions from other sovereigns.