[House Report 114-175]
[From the U.S. Government Publishing Office]
114th Congress { } Report
1st Session { HOUSE OF REPRESENTATIVES } 114-175
======================================================================
DOMAIN OPENNESS THROUGH CONTINUED OVERSIGHT MATTERS ACT OF 2015
_______
June 23, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 805]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 805) to prohibit the National Telecommunications
and Information Administration from relinquishing
responsibility over the Internet domain name system until the
Comptroller General of the United States submits to Congress a
report on the role of the NTIA with respect to such system,
having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 6
Statement of General Performance Goals and Objectives............ 6
New Budget Authority, Entitlement Authority, and Tax Expenditures 6
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 7
Committee Cost Estimate.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Domain Openness Through Continued
Oversight Matters Act of 2015'' or the ``DOTCOM Act of 2015''.
SEC. 2. REQUIREMENTS FOR IANA STEWARDSHIP TRANSITION.
(a) In General.--Until the date that is 30 legislative days after the
submission to Congress of the report described in subsection (b), the
Assistant Secretary may not permit the NTIA's role in the performance
of the Internet Assigned Numbers Authority functions to terminate,
lapse, be cancelled, or otherwise cease to be in effect.
(b) Report Described.--The report described in this subsection is a
report that contains--
(1) the proposal relating to the transition of the NTIA's
stewardship of the Internet Assigned Numbers Authority
functions that was developed in a process convened by ICANN at
the request of the NTIA; and
(2) a certification by the Assistant Secretary that--
(A) such proposal--
(i) supports and enhances the
multistakeholder model of Internet governance;
(ii) maintains the security, stability, and
resiliency of the Internet domain name system;
(iii) meets the needs and expectations of the
global customers and partners of the Internet
Assigned Numbers Authority services;
(iv) maintains the openness of the Internet;
and
(v) does not replace the role of the NTIA
with a government-led or intergovernmental
organization solution; and
(B) the required changes to ICANN's bylaws contained
in the final report of ICANN's Cross Community Working
Group on Enhancing ICANN Accountability and the changes
to ICANN's bylaws required by ICANN's IANA Stewardship
Transition Coordination Group have been adopted.
(c) Definitions.--In this section:
(1) Assistant secretary.--The term ``Assistant Secretary''
means the Assistant Secretary of Commerce for Communications
and Information.
(2) ICANN.--The term ``ICANN'' means the Internet Corporation
for Assigned Names and Numbers.
(3) Legislative day.--The term ``legislative day'' does not
include Saturdays, Sundays, legal public holidays, or days
either House of Congress is adjourned for more than 3 days
during a session of Congress.
(4) NTIA.--The term ``NTIA'' means the National
Telecommunications and Information Administration.
Amend the title so as to read:
A bill to provide for certain requirements relating to the
Internet Assigned Numbers Authority stewardship transition.
PURPOSE AND SUMMARY
H.R. 805, the ``Domain Openness Through Continued Oversight
Matters (DOTCOM) Act of 2015,'' ensures that Congress continues
its oversight role of the administration's work to transition
its Domain Name System (DNS) authority from the United States
to the global Internet multistakeholder community. The
legislation requires the National Telecommunications and
Information Administration (NTIA) to submit the transition
proposal in a report to Congress, detailing how the proposal
comports with NTIA's stated criteria for the transition. It
also requires NTIA to certify that the changes to the bylaws of
the Internet Corporation for Assigned Names and Numbers (ICANN)
required by the multistakeholder community as a condition of
the transition have been adopted and are legally actionable
under applicable law. Once the report has been submitted to
Congress, the legislation allows for a review period of thirty
legislative days before NTIA may transition its role in the
DNS.
BACKGROUND AND NEED FOR LEGISLATION
What we now know as the Internet began as an experimental
network designed and managed by the U.S. Defense Advanced
Research Projects Agency (DARPA). Since the time the Internet
was opened for commercial participation in 1992, the U.S.
government has worked to reduce its involvement in governing
the Internet when appropriate. As part of that process, ICANN,
a non-profit U.S. corporation, began managing the Internet
Assigned Numbers Authority (IANA) under contract with NTIA. The
terms of the contract gave NTIA a role overseeing and approving
changes proposed by IANA to the DNS root zone files, which are
maintained by a third-party. While the role has been described
by some as administrative, the backstop of the government has
been an important and effective measure for keeping both the
process and potential bad actors in check.
On March 14, 2014, NTIA announced its intention to
transition its oversight of the Internet DNS root zone
functions, currently performed by IANA, to the global
multistakeholder community. The existing contract between the
U.S. government and ICANN expires in September 2015, although
the contract provides for additional renewal periods.
In order to facilitate the transition, NTIA asked the
global multistakeholder community to generate a proposal for a
successor solution to the role of the government in the IANA
functions. According to NTIA, any proposal should garner wide
community support. In seeking proposals, NTIA also set forth
the following criteria for any acceptable option:
It must support and enhance the multi-
stakeholder model;
It must maintain the security, stability,
and resiliency of the Internet DNS;
It must meet the needs and expectations of
the global customers and partners of the IANA services;
and,
It must maintain the openness of the
Internet.
NTIA has repeatedly stated that they will not accept any
proposal that does not meet these criteria or that would
replace its role with a government-led or inter-governmental
organization solution.
The Subcommittee on Communications and Technology held a
hearing on April 2, 2014, to discuss the NTIA announcement and
efforts by the multistakeholder community to meet the terms set
forth by NTIA. At the hearing, the Subcommittee heard from NTIA
and ICANN, as well as a panel of stakeholder witnesses. The
discussion with stakeholder witnesses generated significant
discussion around ICANN accountability and the topic of
``stress tests''--a series of tests designed to simulate a set
of ``plausible, but not necessarily probable, hypothetical
scenarios'' in an effort to determine the resiliency of ICANN
under any proposed solution.
Additionally, on June 5, 2014, Chairman Fred Upton led a
group of six Republican Members in asking the Government
Accountability Office (GAO) to examine specific aspects of any
IANA transition, including the national security implications
for the United States, how to retain and enforce the
Affirmation of Commitments, and whether NTIA should require
ICANN to meet any additional criteria before NTIA approves a
transition.
ICANN's next scheduled meeting is in Buenos Aires,
Argentina from June 21-26, 2015. NTIA has requested that both
the IANA Stewardship Transition Coordination Group (ICG) and
Cross Community Working Group on ICANN Accountability (CCWG-
Accountability) provide timelines for completion and
implementation of the respective plans by the end of June. The
existing contract for the IANA functions expires on September
30, 2015; however, the contract can be extended by NTIA to
accommodate a complete development and implementation process
beyond September 30.
Developing a proposal built to withstand hypothetical
stress tests and takeover of government control is no simple
task. The Committee has continued discussions with NTIA and the
global multistakeholder community on the efforts and progress
of the working groups in meeting NTIA's challenge to propose a
successor solution capable of addressing the complex needs of
the Internet ecosystem. The Committee urges NTIA, through its
role on the ICANN Government Advisory Committee and using all
of the tools at its disposal to faithfully pursue an outcome
that furthers the United States' economic and national
security.
While the DOTCOM Act does not specify specific terms that
must be a part of the output of the multistakeholder process,
the Committee is acutely aware of specific issues that are of
concern to U.S. interests.
The Committee has heard from a number of commenters
expressing concerns related to the treatment of the .mil and
.gov top-level domains. By virtue of the Internet's historical
home in the United States, our national military and government
Internet sites are in their own top-level domains located in
the root, rather than as domains within our country code top-
level domain. For example, the website for the U.S. Congress is
found at congress.gov, while the Canadian Parliament is found
at parl.gc.ca. The Committee is aware of the implications of
expanding access to the .mil and .gov domains beyond U.S.
government use and urges NTIA to resolve these concerns through
the multistakeholder process. As both a beneficiary of the
benefits of the .gov domain and the U.S. representative in the
ICANN Government Advisory Committee, the Committee expects NTIA
to ensure that the .mil and .gov domains are handled in the
transition in a way that maximizes U.S. national security and
the security of our national Internet assets. Moreover, section
2(A)(ii) and 2(A)(iii) of the bill require NTIA to ensure the
security and stability of the DNS and to meet the needs of
IANA's global partners and customers, including the U.S.
government.
Additionally, a number of U.S. interests have raised
concerns regarding Internet registries and registrars failing
to fulfill and enforce their contractual obligations created
through the multistakeholder process. Specifically, the
Committee has heard from a number of stakeholders that they are
not following through on requirements to prohibit use of domain
names for illegal activity, such as spreading malware;
operating botnets; engaging in phishing, counterfeiting,
illegal sale of drugs, or child exploitation; stealing physical
or intellectual property; violating trademarks; or committing
fraudulent or deceptive practices.
Sections 3.7.7, 3.7.7.9, and 3.18 of the Registrar
Accreditation Agreement, and Public Interest Commitment 3(a) in
Specification 11 of the Standard Registry Agreement, require
registrars and registries to prohibit holders of domain names
from engaging in illicit conduct, to investigate claims of
abuse, and to provide consequences for violations, including
suspension of domain names in some cases. Failure to enforce
these provisions would call into question whether NTIA can
certify that proposed transition meets three of the criteria in
the bill: section 2(b)(2)(A)(i)'s requirement that the
transition proposal support and enhance the multistakeholder
model, section 2(b)(2)(A)(ii)'s requirement that the proposal
maintain the security, stability, and resiliency of the domain
name system, and section 2(b)(2)(A)(iii)'s requirement that the
proposal meet the needs and expectations of the customers and
partners of IANA services.
Failure to enforce obligations created through the
multistakeholder process would jeopardize the transparency,
credibility, and accountability needed for the multistakeholder
governance model to work and give credence to those who argue
that governments, not stakeholders, must define relationships
on the Internet. Additionally, if ICANN, registries, and
registrars do not enforce contract terms prohibiting use of
domain names for illegal activity, the security, stability, and
resiliency of the system will start to decay. Lastly, failure
to enforce obligations created through the multistakeholder
process would suggest disregard for the needs and expectations
of the IANA's customers and partners.
To be clear, we are not asking NTIA to insist that ICANN
become ``the content police.'' The Internet is and should
remain an open forum for creativity, commerce, and
communication. Preventing the spread of malware, phishing,
counterfeiting, illegal sale of drugs, child exploitation,
theft, and fraud neither chills expression nor amounts to
censorship. In fact, enforcing contract provisions prohibiting
use of domain names for unlawful activity will promote another
provision of the bill: section 2(b)(2)(A)(iv)'s requirement
that the proposal maintain the openness of the Internet. There
cannot be healthy discourse in an unhealthy ecosystem, and
without trust that the Internet is safe, people will be
reluctant to engage online, whether for commercial or non-
commercial purposes. The Committee therefore asks the NTIA to
work with ICANN and stakeholders so that the transition
proposal ensures the contractual obligations created through
the multistakeholder process are fulfilled and effectively
enforced.
Finally, the Committee adopted an amendment to H.R. 805
that changed from ``implemented'' to ``adopted'' the standard
for NTIA to certify that the changes to ICANN's bylaws have
been made. The Committee made this change in response to
concerns that the term ``implemented'' was undefined in law,
whereas the term ``adopted'' better conforms to the norm for
U.S. corporation law. To be clear, the Committee intends NTIA
to ensure that changes made to ICANN's bylaws are actionable
under California law. The changes being considered by the
multistakeholder community include provisions to empower the
Internet community to remove members of ICANN's Board of
Directors and a requirement that the community approve changes
to ``fundamental bylaws,'' including the scope of ICANN's
mission. The Committee expects that should these provisions
survive the multistakeholder process as conditions for the
transition, that NTIA will not certify their adoption until
such time as the Internet community can avail themselves of the
terms, either through ICANN's processes or through the courts.
HEARINGS
The Subcommittee on Communications and Technology held a
hearing on H.R. 805 on May 13, 2015. The Subcommittee received
testimony from:
Steve DelBianco, Executive Director,
NetChoice;
Danielle Kehl, Senior Policy Analyst, New
America's Open Technology Institute;
Audrey Plonk, Director, Global Cybersecurity
and Internet Governance Policy, Intel Corporation;
Matthew Shears, Representative and Director,
Global Internet Policy and Human Rights Project, Center
for Democracy and Technology; and,
Brett Schaefer, Senior Research Fellow in
International Regulatory Affairs, The Heritage
Foundation.
COMMITTEE CONSIDERATION
On June 10, 2015, the Subcommittee on Communications and
Technology met in open markup session and forwarded H.R. 805 to
the full Committee, as amended, by a voice vote. On June 16 and
17, 2015, the full Committee on Energy and Commerce met in open
markup session and ordered H.R. 805 reported to the House, as
amended, by a voice vote.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 805 reported. A motion by Mr. Upton to order H.R. 805
reported to the House, with amendment, was agreed to by a voice
vote.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a hearing and made
findings that are reflected in this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
The goal and objective of H.R. 805 is to provide Congress
with additional time to review the plan proposed by NTIA to
transition the Domain Name System authority to the global
multistakeholder community.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
805, would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 805 contains no earmarks, limited tax benefits,
or limited tariff benefits.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 19, 2015.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 805, the Domain
Openness Through Continued Oversight Matters Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie.
Sincerely,
Keith Hall, Director.
Enclosure.
H.R. 805--Domain Openness Through Continued Oversight Matters Act of
2015
Under current law, the National Telecommunications and
Information Agency (NTIA) has certain responsibilities in
overseeing the Internet Domain Name System (DNS). The DNS is
the system that maintains files that link domain names with
numerical addresses needed to locate computer services and
devices. The agency has announced plans to transfer those
responsibilities to the international community; in preparation
for that event, NTIA has requested a proposal from global
stakeholders outlining a transition plan.
H.R. 805 would direct the NTIA to retain those
responsibilities for a 30-day period after the agency submits a
report to the Congress that contains the proposed transition
plan and a certification by the agency that the plan meets
NTIA's criteria for acceptance and that certain accountability
measures have been adopted by the group of stakeholders
proposing the plan.
Based on information from the NTIA, CBO estimates that
implementing H.R. 805 would have an insignificant effect on
discretionary costs over 2016-2020 period. CBO expects that the
new reporting requirement would not have a significant effect
on the agency's workload. Pay-as-you-go procedures do not apply
to this legislation because enacting the bill would not affect
direct spending or revenues.
H.R. 805 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The staff contact for this estimate is Susan Willie. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
DUPLICATION OF FEDERAL PROGRAMS
No provision of H.R. 805 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
Enacting H.R. 805 does not require any rule making.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This section provides that the bill may be cited as the
``Domain Openness Through Continued Oversight Matters Act of
2015'' or the ``DOTCOM Act of 2015.''
Section 2. Requirements for IANA stewardship transition
Subsection (a) requires the NTIA to continue to serve in
its role as steward of the IANA functions in the Internet's DNS
until thirty legislative days after the Assistant Secretary of
Commerce for Communications and Information submits the report
required by subsection (b) of the Act.
Subsection (b) requires the Assistant Secretary to submit a
report to Congress that contains two certifications. First, the
Assistant Secretary must certify that the proposal for
transition that was submitted to NTIA by ICANN meets NTIA's
stated criteria for a successful successor to the U.S.
government's role in IANA. Specifically, that the proposal:
Supports and enhances the multi-stakeholder
model of Internet governance;
Maintains the security, stability, and
resiliency of the Internet domain name system;
Meets the needs and expectations of the
global customers and partners of the Internet Assigned
Numbers Authority services;
Maintains the openness of the Internet; and,
Does not replace the role of the NTIA with a
government-led or intergovernmental organization
solution.
Second, the Assistant Secretary must certify that the changes
to ICANN's bylaws that are required by the multistakeholder
community as prerequisites to the IANA transition have been
adopted by ICANN.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.