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Rep. Kelly Introduces Resolution Authorizing Congress to Sue Obama Administration Over Unlawful "Transfer" of Internet

September 9, 2016

WASHINGTON — U.S. Representative Mike Kelly (R-PA) issued the following statement today after introducing a resolution in the House of Representatives authorizing the Speaker of the House to “initiate or intervene in a civil action regarding the compliance of the executive branch with the provision of law prohibiting relinquishment of the responsibility of the National Telecommunications and Information Administration (NTIA) with respect to Internet domain name system functions.” The resolution, H. Res. 853, is a response to the Obama administration’s decision to “transition” stewardship of the Internet’s critical functions – long safeguarded by the U.S. government – to “the global multi-stakeholder community” despite prohibitions enacted by Congress against NTIA using taxpayer funds to do so before 2017.

Statement by Rep. Kelly:

“As a nation, we have a duty to preserve Internet freedom for Americans and for the world. As a governing body, we have a duty to uphold our Constitution’s separation of powers and to protect our own ‘power of the purse’ as intended by our founders, as well as our sole power to dispose of federal property. This resolution will help achieve all of these objectives by formally authorizing Speaker Ryan to take this administration to court if it follows through with its irresponsible plan to let our country’s stewardship of the Internet expire at the end of this month. Such a rushed transition puts the Internet at serious risk of falling under the influence of bad actors abroad who despise the free flow of information. The American people’s Congress has prohibited this hasty surrender in law and the administration must follow it.”

Excerpts of letter from 25 organizations to House and Senate leaders urging lawsuit:

Our Constitution rests on the idea that the “Power of the Purse” belongs to Congress, not the President — because,  as  Elbridge  Gerry  put  it  at  the Constitutional  Convention of 1787,  the House is “more immediately the representatives of the people and ... the people ought to hold the purse-strings.” The House fought to defend this core democratic principle in 2014, when it sued over implementing the Affordable Care Act’s subsidies that weren’t appropriated by Congress. Now,   the   Administration   appears   determined   to   violate   clear   appropriations prohibiting   the   transition   of   the   Internet   domain   system   without authorization. If the Administration does not relent, Congress should sue.

Congress should make clear that it will sue to enforce the funding prohibition. As it did in 2014, the House needs to vote to authorize Speaker Ryan to sue to defend its Article I powers — not only  the  Power  of  the  Purse  but  also  the  sole  right  to  dispose  of  federal  property,  which  the IANA function may well be. A federal court could issue a writ of mandamus, ordering NTIA to exercise  the  option  to  renew  the  contract,  or  a  declaratory  judgment  that,  if  the  IANA  contract terminates, the IANA function contract rights revert to NTIA, not to ICANN. Such a ruling could effectively unwind the Transition.

Suing to enforce the appropriations rider and extending it through FY2017 are amply justified by the extraordinary importance of the Constitutional principle  at  stake.  Members  of  both  parties should  be  able  to  unite  around  defending  the  Power  of  the  Purse,  the  most  fundamental Constitutional power of the American People’s elected representatives. If enacted legislation is no  longer  considered  binding,  a  fundamental  check  on  Executive  power  will  have  been  lost. Legislators also have a solemn responsibility to future generations to ensure that the future of the Internet is not placed at risk by prematurely ending U.S. oversight. We urge you act promptly.

NOTE: On May 25, 2016, Rep. Kelly introduced the Securing America's Internet Domains (SAID) Act of 2016(H.R. 5329), which requires the National Telecommunications and Information Administration (NTIA) to certify that the U.S. government has secured sole ownership of the .gov and .mil top-level domains before it can transfer the Internet Assigned Numbers Authority (IANA) functions to the global multistakeholder community. Specifically, this certification requires that the U.S. government has entered into a contract with the Internet Corporation for Assigned Names and Numbers (ICANN) that provides that the U.S. has full, exclusive control and use of such domains in perpetuity.

On May 12, 2015, Rep. Kelly introduced the Defending Internet Freedom Act of 2015 (H.R. 2251), which would prohibit NTIA from relinquishing the critical functions of the Internet to any other entity without enhanced congressional oversight and until every freedom-protecting accountability requirement defined in the bill is completely satisfied.

On June 11, 2014, Rep. Kelly authored a guest opinion piece for Red Alert Politics describing the stakes of surrendering American stewardship of the Internet to a multinational body or any other entity.

 

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