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Reply to Senator Cruzs statement:

The United States Government's contract with ICANN does not give the U.S.
any power over ICANN to regulate or protect speech on the Internet today.
Right now, there is nothing about ICANN or its contract with the U.S.
Government that prevents a country from censoring or blocking content within
its own borders.
ICANN is a technical organization and does not have the remit or ability to
regulate content on the Internet. That is true under the current contract with
the U.S. Government and will remain true without the contract with the U.S.
Government. The transition will not empower or prohibit sovereign states from
censoring speech.
Sovereign states have the authority to establish rules under which the Internet
operates within their borders. NTIAs authority under the IANA functions
contract does not override other nations sovereign authority to regulate any
aspect of the Internet within those nations borders.
By holding on to the contracts, the USG would create a powerful incentive for
other governments to set up their own root zone, splintering the Internet,
providing opportunities for confusion and abuse, and reducing the
addressable market of 3.4 billion users that US industry and the rest of the
world currently enjoys.

To address his spokesmans response:


Free expression does not happen in the publication of the root zone. The root
zone is simply a list of top-level domains and the computers that respond to
queries for the names in those top-level domains. The root zone can be seen as
a very simple list of (only) top-level domains (e.g., .COM, .GOV, .JP, etc.), which
then point to the servers that hold information about the second-level domains for
those top-level domains, e.g., for .COM, the root zone lists the servers (operated
by Verisign) that hold all the over 150 million second-level domain names in
.COM. The root zone itself does not contain those 150 million second-level
names. The root zone only has about 1000 names. Mr. Cruz overstates the role
of the root zone and misstates ICANNs responsibilities, abilities, remit and
technical capability. The root zone file does not operate the Internet, or have any
role in content on the Internet
Under the IANA Functions Contract, ICANN receives and validates proposed
entries into the root zone, which are then entered into the root zone by Verisign
when authorized by NTIA. Senator Cruz and his spokesperson suggest that this
translates into control over who can register second-level domains, what content
they can put onto the web pages to which those domain names point, and
whether those websites can be shut down to curtail the exercise of free speech.
That has never been part of the IANA Functions Contract, has never been
conduct that the U.S. Government could control (or protect) through its

contractual relationship with ICANN, nor has it been ICANNs role or within its
abilities.
The App Association stated that maintaining the IANA functions contract wont
safeguard freedom of expression on the Internet because neither the DNS nor
the U.S. Governments role provide any authority over content on the Internet.
Sovereign states regulate content on the Internet within their borders that is
true now and will remain true after the transition.
In addition to performing the IANA functions, ICANN has always been the home
for coordination of domain-name related policies. This policy role is not new.
Policy work is specifically excluded from the IANA Functions Contract with
ICANN. What does this mean? That the role of the U.S. as it relates to domain
name policy development does not change as a result of the transition. Further,
the U.S. has never asserted and has no grounds to assert that its presence
within the ICANN policy development process imposes a global obligation to
respect the First Amendment across all participants in ICANNs global multistakeholder community.
The U.S. Government has never, and has never had the ability to, set the
direction of the communitys policy development work based on First Amendment
ideas. Yet that is exactly what Senator Cruz is suggesting. The U.S. Government
has no decreased role. Other governments have no increased role. There is
simply no change to governmental involvement in policy development work in
ICANN.
Senator Cruz cannot identify any portion of the IANA Functions Contract that
gives the U.S. a heightened role in policy development. The transition will not
change the U.S.s ability to raise objections or bring policy advice to the ICANN
Board (through the Governmental Advisory Committee) that the U.S. has today.
As it relates more broadly to the Internet, the transition will not impact the U.S.s
ability to protect the First Amendment that it has today. That work, as it does
today, happens outside of ICANN, through legislation and judicial challenges.
The policy development work referred to by Senator Cruzs spokesperson is not
about the entire Internet ecosystem. Policy work coordinated through ICANN
only includes developing and recommending to the Board global policies relating
to country-code top-level domains (i.e., not second-level domains); and then
substantive policies relating to generic top-level domains, which are clarified as
those policies [f]or which uniform or coordinated resolution is reasonably
necessary to facilitate the openness, interoperability, resilience, security and/or
stability of the DNS. ICANNs policy-making scope has been stable since its
creation. Additional policy work that relates to the Internet happens in other fora.
The statement: The only safeguard right now that protects freedom of access to
publish content on the Internet is the fact that ICANN is under contract with the

U.S. Government, which is subject to the First Amendment is not correct and
represents a fundamental misstatement of the scope of the IANA Functions
Contract and the rights the U.S. has through that agreement. The IANA
Functions Contract does not, again, relate to any content publication. ICANN
does not, either through the IANA Functions Agreement or otherwise, say who
can register a second-level domain, determine the content that can appear on
those sites, and when those sites must be taken offline. ICANN does not have
any power to shut down individual websites.
Many leading civil society and advocacy groups argue that the transition will
enhance free speech on the Internet. Human Rights Watch, Access Now,
Article19, Open Technology Institute and Public Knowledge, support the
transition because executing upon the IANA transition is the best way to ensure
the continued functionality of the global internet and to protect the free flow of
information so essential to human rights protection.
Senator Cruz suggests that ICANN President and CEO Gran Marbys
unremarkable acknowledgment that private entities such as ICANN cannot
enforce the First Amendment to the Constitution. ICANN does not have this
power today, notwithstanding the existence of the IANA Functions Contract.
The statement: [t]here will be nothing, as the hearing also illustrated
yesterday, to stop ICANN from regulating which websites appear on the Internet
is not accurate. At the hearing, Mr. Marby confirmed that ICANN is not a
regulator. That fact went without challenge. Moreover, with the transition,
ICANNs new Bylaws have been amended to state: ICANN shall not regulate
(i.e., impose rules and restrictions on) services that use the Internets unique
identifiers or the content that such services carry or provide, outside the express
scope of Section 1.1(a) [setting out the limited policy authority discussed above].
For the avoidance of doubt, ICANN does not hold any governmentally authorized
regulatory authority. The suggestion that the removal of the single, technical,
operational contract that ICANN holds with any government results in ICANN
suddenly gaining broad regulatory authority is a remarkably unsupportable
statement.
The heart of Senator Cruzs argument appears to lie in the statement because
the transition diminishes U.S. influence over Internet governance, it necessarily
increases the influence of authoritarian regimes by comparison. Senator Cruzs
spokesperson is relying upon the symbolic role and not any demonstrated legal
issue of First Amendment application or other legally supported grounds that
the U.S. holding the IANA Functions Contract has upon the rest of the world.
There is great symbolic impact in the U.S. holding the IANA Functions Contract,
and even greater impact if the U.S. refuses to step out of its clerical role in the
face of nearly 20-years of commitment to do so. Senator Cruzs office has a
position that removing the U.S. from the contract also takes away the ability for

the U.S. to control content across the Internet, while empowering other
governments.
Many take an opposite view that extending the contract may actually lead to
the loss of Internet freedom because it could fuel efforts to move Internet
governance decisions to the United Nations (U.N.). Former Homeland Security
Secretary Michael Chertoff and retired Vice Chairman of the Joint Chiefs of Staff
James Cartwright stated that, rejecting or even delaying the transition would be
a gift to those governments threatened by a free and open Internet.
The role of governments has not been increased as a result of the transition. The
multistakeholder model will continue to appropriately limit the influence of
governments and intergovernmental organizations to an advisory role in policy
development. More than 170 governments actively participate as a single
committee and must come to a consensus before policy advice can be
issued. After the transition, there will be times where the ICANN Board must give
special consideration to the public policy advice of governments. However, this
will only happen when there is no objection from any government in the
committee which includes the United States. This is a stricter requirement than
is currently in place for government advice.
The Government Advisory Committee has not previously had an opportunity to
participate in decisions of the recall of the ICANN Board, or reject Budgets or
plans or other new powers. However, no other part of the ICANN community has
previously had this opportunity either. These are all NEW powers of the
community, and the GAC still does not participate in these on equal footing with
the remainder of the community. The GAC is specifically "carved out" from
participating in community powers that would challenge decisions based on GAC
advice. The empowered community thresholds were developed so that the
GAC's support is not needed to exercise any of the community's power. As
Assistant Secretary Strickling has stated, the power of the Governments has not
increased vis-a-vis the remainder of the community. This is true.
If the United States Government insists on maintaining its exclusive role,
governments around the globe will demand their own similar role. And that will
begin the migration away from private sector-led Internet policy development and
the single namespace we enjoy today. The majority of nations will then turn to the
UN to solve issues like privacy, content control, taxation and interconnection
fees.