Earlier this month, Secretary of Commerce Penny Pritzker issued a statement praising a determination by the National Telecommunications and Information Administration (NTIA) that paves the way for completing the privatization of the Internet’s domain name system. Such privatization seems like a highly questionable move as a matter of policy, but the overriding issue here isn’t internet governance; rather it is Article I of the Constitution. Here’s why.
NTIA, located within the Department of Commerce, is the Executive Branch agency principally responsible by law for advising the President on telecommunications and information policy issues. It has said it will transition the U.S. government’s stewardship role of technical functions related to the Internet’s domain name system (DNS), commonly known as the Internet Assigned Numbers Authority (IANA) functions, to the Internet’s global multi-stakeholder community.
But wait! Section 539 of the Fiscal Year 2016 Omnibus prohibits funds provided in the Act from being used to relinquish the NIIA’s responsibility for IANA functions. In other words, Congress defunded the internet transition that NTIA wants to carry out. The Commerce Department is thumbing its nose at Congress.
Rep. John Culbertson, chairman of the House Subcommittee on Commerce, Justice, Science, and Related Agencies, promptly wrote a letter to Secretary Pritzker reminding her of the inconvenient reality of the Omnibus. To my knowledge, Pritzker has not responded.
It would be no response to say that NTIA is merely preparing a transition. As Rick Manning of Americans for Limited Government points out, “it is not only illegal to violate a federal statute, it is also illegal to plan to or prepare to violate a federal statute.” Manning cites 18 U.S. Code 371 which prohibits persons from “conspire[ing] either to commit any offense against the United States… [or] do any act to effect the object of the conspiracy…”
The question thus becomes whether Speaker Paul Ryan will defend the defund legislation and, above all, Congress’ Article I power of the purse. NTIA plainly is circumventing this constitutionally mandated power.
Will Paul Ryan stand for this? If he does, it will represent a milestone in the enfeeblement of Congress.
We will keep you posted.