On March 27, 2014, shortly after the National Telecommunications and Information Administration’s (NTIA) March 14th announcement of its intent to transfer its counterparty status on ICANN’s IANA functions contract to the global multistakeholder community, the conservative advocacy organization Americans for Limited Government (ALG) filed a Freedom of Information Act (FOIA) request with NTIA. ALG’s request was for disclosure of “All records relating to legal and policy analysis developed by or provided to the National Telecommunications and Information Administration (NTIA) that support its decision to “transition key internet domain name functions,” including any analysis showing whether the NTIA has the legal authority to perform the transition.”
NTIA’s documentary response to the request sheds some limited light on its inner workings as it readied the IANA transition announcement and dealt with the immediate aftermath of its decision. Yet it fails to provide any analysis regarding its legal authority to effect the IANA transition in the absence of legislative authorization from Congress. It does not document in any way its clearly observable coordination with ICANN nor outreach efforts undertaken to secure statements of endorsement from companies and organizations. And it does not reveal the full breadth of Administration deliberations leading up to the announcement—and thereby fails to answer the question of whether the transition was a long-planned event or a shorter-term and politically expedient reaction to Edward Snowden’s NSA cyber-espionage revelations after they began to surface in mid-2013.
Here’s what the FOIA disclosure does reveal (Note: All page references are to the posted FOIA disclosure.):
- Planning for the “IANA Announcement” commenced at least in the first week of 2014, with several NTIA employees accepting an e-mail relating to it on January 2nd (pp.7-9).
- The White House was intimately involved with the announcement’s timing and content, the documents providing its rationale, as well as with post-announcement activities. A March 10th e-mail (P. 18) on the subject of “IANA Transition Documents—Priority Review” asked, “Does the WH want to see our internal TP/Q&A document?” That e-mail string also reveals that “the four principles for the transition were developed through a protracted interagency discussion” (but does not reveal which agencies were involved or when those discussions commenced); and also includes a March 9th apology for the fact that the “possible announcement” had been moved up by two weeks as part of a cover note for two draft documents that NTIA would be submitting for White House review (but no explanation is ever provided for exactly why the transition announcement date was suddenly moved up by two weeks). A March 20th e-mail (p. 16) references a conference call just held with “WH leg affairs”, and goes on to relate, “They suggested we work on a mythbusters sheet for the Hill, which will help us correct some misinformation in advance of the hearing. They suggested that we work on this in the next day or two.” And a March 25th e-mail (pp.80, 94) advises NTIA staff that “WH leg confirmed for me that they want the Myths document for public use, and they want to get it out ASAP.” (Note: On April 2nd NTIA published “Myths and Facts on NTIA Announcement on Intent to Transition Key Internet Domain Name Functions”.)
- The State Department and intelligence community also may have had some role in reviewing the pre-announcement talking points. A mid-afternoon e-mail (p.77) on the day the announcement was made, March 14th, asks, “Do you think we could share this on the other thread with State in terms of their cover note to the 5 eyes which will be part of the pre-release notification.” (Note: Per Wikipedia: “The ‘Five Eyes’, often abbreviated as ‘FVEY’, refer to an intelligence alliance comprising Australia, Canada, New Zealand, the United Kingdom and the United States”.)
- Some considerable amount of consideration was given to how to best phrase, for Q&A purposes, the claim that that the .mil, .gov and .edu top level domains would not be impacted by the IANA transition (pp. 83, 99). The final Q&A document contains this language: “Q. Are the legacy top level domains associated with U.S. Government (e.g., .mil., .gov, .edu) part of this transition?? A. No, the operation of and responsibility for the three remaining legacy top level domains associated with the U.S. Government specifically .mil, .gov, and .edu are not impacted by this transition as they are not part of the IANA and related root zone management functions.”
Yet I have been told by a leading DNS security expert that the IANA functions for .mil and .gov would be captive to the same technical root change provisioning and implementation operations as any other TLD. Therefore it is not clear that control of these two TLDs at the root level, the use of which have always been restricted respectively to the U.S. military and government, will remain solely within the control and operational space of the U.S. government after the IANA transition—as the NTIA will have presumably surrendered its ultimate control over the root zone master file. This seems like a matter of sufficient U.S. national security and operational importance that it must be fully clarified before any transition occurs. (Note: The .gov TLD is currently operated by VeriSign under a contract with the U.S. General Services Administration (GSA); while the technical operation of .mil is under the direction of the U.S. Department of Defense. While those in the Internet domain community tend to think of these legacy ‘restricted’ or ‘sponsored’ TLDs as quasi-Country Code TLDs (ccTLDs), it is only by historic circumstance that the U.S. has had sole control of them in addition to its undisputed national ccTLD of .us
- The possibility that the announcement would be moved up first surfaced in late February, yet still caught some NTIA staff by surprise. A February 28th e-mail (p. 92) from NTIA’s Director of Public Affairs inquired, “I understand that the ICANN stuff may be pushed up. Should we schedule a meeting next week to talk about plans and stakeholder outreach, etc.?” Yet the press of preparing the documents required for the announcement seemed to have caught some NTIA staff off balance—a March 12th e-mail (p. 17) from one on the subject of “IANA Transition Documents—Priority review” had the message. “here is a pic of me from yesterday thrown under a bus”—with an accompanying graphic of a government worker being run over by a bus (but the disclosures contain no additional information on what had transpired at the March 11th meeting he referenced).
The disclosures also contain some other interesting tidbits and curiosities:
- A March 18th “roundup” e-mail (pp.2-6) including “federal register and congressional activity” is mostly redacted except for three links relating to the NTIA transition announcement the previous Friday (it appears that the redacted items may not have been relevant to the FOIA request).
- A March 24th “iana” e-mail (pp.12-13) references several upcoming think tank panel discussions on the transition announcement (including an April 3rd ITIF event that I participated in) as well as this interesting statement conjuring up the mental image of President Obama conferring with Facebook CEO Mark Zuckerberg: “WH made sideline ask for ongoing support from FB at the Friday POTUS CEO meeting (ANYTHING FROM SPP?)” [Note: My conjecture is that “SPP” may be a reference to Commerce Department Secretary Penny Pritzker.]
- More than half of the 106-page FOIA disclosure consists of post-transition announcement public domain press clips (pp.21-76) that are in no way responsive to the FOIA request for internal legal and policy analysis. They are just padding to presumably make it look more forthcoming.
- A closed-door briefing for the staff of Senate Commerce Committee members featuring NTIA head Lawrence Strickling and Ambassador Daniel Sepulveda was held on March 18th (p.88). But the document disclosure contains no mention of a similar briefing for staff of the Republican-controlled House Energy and Commerce Committee.
- The final document in the package (pp.105-6) is the press release of the House Energy and Commerce Committee announcing its intention to hold an oversight hearing during the first week of April.
One might ask, now that the NTIA announcement is several months behind us and ICANN is facilitating the development and operation of stakeholder groups to address the IANA transition and accompanying improvements in ICANN accountability, why any of this is more than merely interesting?
The answer to that question is that the initial goal for completion of the transition process is more than a year away, in September 2015, and that approval of any plan developed and proposed by the global multistakeholder community will still require the approval of the NTIA—an agency that is in turn subject to Congressional oversight as well as its “power of the purse”. The US political environment for evaluation of any transition plan could change over the coming year, especially if Republicans capture control of the Senate in the approaching November 2014 midterm elections.
In that context the questions of whether NTIA has independent legal authority to transfer its IANA oversight role absent Congressional approval, as well as whether the IANA transition is really the completion of a long-envisioned process or is a damage control strategy conceived in the wake of the Snowden revelations, or perhaps a combination of both, are quite meaningful.
On the first question, NTIA’s FOIA disclosure simply fails to respond to ALG’s request for “any analysis showing whether the NTIA has the legal authority to perform the transition”. In this regard, I was told by a senior NTIA official during the ICANN Singapore meeting in March that it was absolutely confident that the transition did not require Congressional approval—but my wish to see a legal analysis providing the foundation for that confidence remains unfulfilled. I have also been told by journalists that NTIA staff has stated that it has a legal analysis on this question, but their requests for it have been rebuffed. This is a question on which Congress may yet demand documentation since it goes to the heart of its own authority and oversight role.
On the second question, while the FOIA disclosure reveals that NTIA’s four principles for an acceptable transition proposal were developed through a protracted interagency discussion, it does not list the agencies involved, provide the starting point for that discussion, or reveal what considerations led to these specific principles. It would be particularly useful to know whether the discussions had commenced prior to the Snowden revelations as a conceptual means for taking the final step toward a commitment that is claimed to have been made at ICANN’s inception—or whether they did not commence until after his revelations started giving new ammunition to critics of the U.S. relationship with ICANN and a politically expedient response was deemed necessary to best preserve multistakeholder Internet governance and protect it from multilateral incursion.
Summing up, while NTIA’s FOIA disclosure sheds some interesting light on the timing of and actors involved in the IANA transition announcement and its immediate aftermath, it fails to answer critical questions regarding its independent legal authority and the process that led up to the transition announcement. Those shadow areas may yet be explored by Congress or by groups employing additional FOIA requests.
Unless I missed it on my skim-read, there doesn’t seem to be any allusions in this release supporting the idea that the announcement was originally scheduled for the Monday morning but was made instead late on the Friday (which looked like an attempted weekend burial) only because the story was “leaked” to the Washington Post.
“...but my wish to see a legal analysis providing the foundation for that confidence remains unfulfilled. I have also been told by journalists that NTIA staff has stated that it has a legal analysis on this question, but their requests for it have been rebuffed.”
For anyone whose interest is piqued by this comment, legal memoranda and opinions are exempt from FOIA disclosure in the same way that legal opinions are privileged in ordinary circumstances.
Pointing out “they didn’t disclose their legal rationale” is a time-honored game in the FOIA follies. However, government agencies and those who run them are, just like anyone else, entitled to obtain confidential opinions of counsel. If one wants to test the legal basis of an agency action, then one with standing brings suit, gets the argument at that time, and the court decides.
This species of grandstanding over the FOIA exemptions relating to pre-decisional legal opinions featured prominently in the Bush administration “torture memo” and Obama administration “drone memo” foofaraws. The way the game is played is that an advocacy group makes a FOIA request, doesn’t get the exempt material, and then makes a big deal over “they are hiding something from us!”
NTIA certainly is welcome to claim any exemptions under FOIA they like. The fact of the matter is, to date, in its interim response, the agency has not claimed any privileged exemptions on this particular FOIA request. Nor is NTIA required to withhold the legal analysis from public purview under FOIA. They can disclose the legal analysis if they wish in fulfilling Americans for Limited Government's (ALG) FOIA request. That the analysis is of public interest is beyond dispute. The only way to get the analysis under FOIA is to request it. In our FOIA request, we reminded NTIA of the Obama administration policy in favor of disclosure mandated by the President on January 26, 2009. President Obama instructed the executive departments and agencies to operate with a presumption towards disclosure. On this point the President stated as follows: "A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sun-light is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public." These instructions from the President were followed up by further instructions from Attorney General Eric Holder on March 19, 2009, where he said an agency should not necessarily withhold information just because legally they are allowed to withhold: "First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption. [emphasis added] Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure." Based on these policies, ALG believes that there will be no records sought under the FOIA request that the NTIA will withhold. In this case, we are urging NTIA to disclose the legal analysis -- i.e. whether the agency has requisite congressional authority to perform IANA transfer -- because of the urgency of the matter. The House of Representatives has already voted to defund implementation of the transfer in the FY 2015 Commerce appropriations bill. The fact is, time is running out for Congress to do something about the transfer. Once FY 2015 funds are in place, for example via a "clean" continuing resolution, there will be no opportunity for Congress to defund the transfer -- even if it ultimately turns out there never was any legal analysis done by NTIA regarding the transfer.