H. Rept. 113-50 - 113th Congress (2013-2014)
May 03, 2013, As Reported by the Energy and Commerce Committee

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House Report 113-50 - TO AFFIRM THE POLICY OF THE UNITED STATES REGARDING INTERNET GOVERNANCE




[House Report 113-50]
[From the U.S. Government Printing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     113-50

======================================================================



 
TO AFFIRM THE POLICY OF THE UNITED STATES REGARDING INTERNET GOVERNANCE

                                _______
                                

 May 3, 2013.--Referred to the House Calendar 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. 1580]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 1580) to affirm the policy of the United States 
regarding Internet governance, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Hearings.........................................................     6
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     7
Statement of General Performance Goals and Objectives............     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Earmarks, 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...................     9
Changes in Existing Law Made by the Bill, as Reported............     9

                          PURPOSE AND SUMMARY

    To show the nation's resolve against regulation of the 
Internet by international governmental bodies and to garner 
support from other countries, H.R. 1580 makes it ``the policy 
of the United States to preserve and advance the successful 
multistakeholder model that governs the Internet.'' The bill is 
modeled after a resolution the House and Senate unanimously 
passed in 2012 expressing the sense of Congress that the U.S. 
delegation to a treaty negotiation in Dubai should oppose 
efforts to regulate the Internet through a U.N. agency. By all 
accounts, that resolution emboldened more than 50 nations to 
join the United States in refusing to sign the treaty. 
Unfortunately, close to 90 nations did sign the treaty, and 
international attempts to regulate the Internet are continuing 
to escalate. Just as international advocates of a regulated 
Internet are redoubling their efforts, so, too, must the United 
States. That is why H.R. 1580 elevates the language of last 
year's resolution from a sense of Congress about a particular 
treaty negotiation to a law stating U.S. policy on Internet 
governance.

                  BACKGROUND AND NEED FOR LEGISLATION

    International efforts to regulate the Internet could 
jeopardize not only its vibrancy, but also the benefits it 
brings to the world. Nations from across the globe met at the 
December 2012 World Conference on International 
Telecommunications in Dubai to consider changes to the 
International Telecommunications Regulations. Although the 
treaty negotiation was billed as a routine review of rules 
governing international operation of traditional telephone 
service, a number of countries sought to use the treaty to 
subject the Internet to regulation through the International 
Telecommunication Union, a U.N. agency.
    This development was not unanticipated. That is why leading 
up to the conference last year, the House and Senate 
unanimously passed S. Con. Res. 50 expressing the sense of 
Congress that the Secretary of State and the Secretary of 
Commerce should ``articulate[ ] the consistent and unequivocal 
policy of the United States to promote a global Internet free 
from government control and preserve and advance the successful 
multistakeholder model that governs the Internet today.'' Under 
the multistakeholder model, non-regulatory institutions develop 
best practices, with public and private sector's input to 
manage and operate the content, applications and networks that 
make up the Internet.

The Origins of the Internet and Internet Governance

    The Internet finds its roots in the Advanced Research 
Projects Agency (ARPANET), launched in 1969 by the Defense 
Advanced Research Projects Agency to connect universities and 
research laboratories working on Department of Defense 
projects. Over the next two decades, ARPANET transitioned from 
a government network to include civilian users under the 
auspices of the National Science Foundation and became the 
National Science Foundation Network (NSFNET). As the NSFNET 
grew and standards evolved to connect computer networks, a 
larger ``network of networks'' emerged. Then, in 1992, the 
Scientific and Advanced-Technology Act (P.L. 102-476) allowed 
the NSFNET to interconnect with other non-governmental networks 
and opened the door to commercial participation. It was at this 
point that the network began to grow exponentially, and the 
modern Internet was born.
    When network use was limited to U.S. government purposes, 
the Department of Defense managed the network. By the 1990s, 
however, most of the growth was coming from non-military users, 
and the NSF created the Internet Network Information Center 
(InterNIC) to manage both numeric addressing on the networks 
and the databases of sites. As the number of commercial users 
grew, Internet addressing and domain name management became 
exceedingly complex. By 1998, these functions were transferred 
from the control of the U.S. government to the Internet 
Corporation for Assigned Names and Numbers (ICANN), a 
California non-profit corporation that manages a number of 
Internet-related tasks.
    A series of ad hoc groups form the engineering corps of the 
Internet. The Internet Engineering Task Force, the Internet 
Architecture Board, the Internet Engineering Steering Group, 
and the Internet Research Task Force are collectively organized 
under the international non-profit Internet Society. They are 
run by volunteers, and all work to create voluntary standards 
for Internet users to make interconnection of all networks 
easier.
    ICANN, as well as the groups that oversee the creation of 
voluntary Internet standards under the auspices of the Internet 
Society, receive input from governments, Internet users, those 
investing in the Internet, academics, and engineers that 
develop the technology that makes the Internet possible. This 
bottom-up governance structure, referred to as the 
``multistakeholder model,'' mirrors the decentralized nature of 
the Internet. This approach has enabled the Internet to grow at 
an astonishing pace as a driver of jobs, commerce, discourse, 
and innovation and become perhaps the most powerful engine of 
social and economic freedom the globe has ever known. It 
maximizes flexibility and innovation, helping to prevent any 
one governmental or non-governmental actor from exerting 
control over either the design of the Internet or the content 
it carries. That is why the Internet has been able to evolve so 
quickly, both as a technological platform and as a means of 
expanding the free flow of commerce and ideas. Deviation from 
that multistakeholder model weakens the Internet, harming its 
ability to spread both prosperity and freedom. That is why 
there is bipartisan agreement that the United States should 
adopt a policy to preserve and advance the multistakeholder 
model of Internet governance.

The ITRs and the WCIT

    International telecommunications service is governed 
pursuant to regulations adopted through treaty by the 193 
nation members of the International Telecommunications Union 
(ITU), the United Nations' specialized agency for information 
and communications technologies. The ITU was originally 
chartered in 1865 to organize the international regulation of 
telegraph service.
    The ITU convened the World Administrative Telegraph and 
Telephone Conference in 1988 to consider a ``new'' regulatory 
framework for the international regulation of 
telecommunications. Among the resulting International 
Telecommunications Regulations (ITRs) were revisions to the way 
telecommunications providers pay each other for completing 
international phone calls, often referred to as ``settlement 
rates.'' The United States Senate ratified the International 
Telecommunications Regulations in 1992. These regulations 
specifically addressed voice telephony, not data processing 
capabilities, and resulted in large payments to telephone 
companies often owned or controlled by governments.
    In December 2012, the ITU convened the World Conference on 
International Telecommunications in Dubai, UAE, to consider 
changes to the ITRs. Despite assurances from ITU officials that 
the conference would not address Internet governance, several 
proposals from member nations sought to bring aspects of the 
Internet into the text of the ITRs. A number of the Internet-
related provisions, including provisions referencing 
unsolicited electronic communications and network security, 
were of particular concern as they appear to enshrine an 
international cybersecurity regime; could serve as a 
justification for countries to engage in Internet censorship in 
the name of national security; and serve as the predicate for 
international regulation of the Internet, replacing the 
multistakeholder model that has served the Internet and the 
world so well.
    Buttressed by the unanimous passage of S. Con. Res. 50, the 
United States and 54 of the 144 other member states that 
attended the WCIT left without signing the new International 
Telecommunications Regulations. Unfortunately, eighty nine 
nations did sign the treaty. The revised ITRs will be 
implemented by those nations beginning in January 2015. A 
number of upcoming conferences, including the May 14-16, 2013, 
World Telecommunication/ICT Policy Forum in Geneva and the Oct. 
20-Nov. 7, 2014, ITU Plenipotentiary Conference in Busan, South 
Korea, will present additional opportunities for countries to 
pursue international regulation of the Internet. The continued 
and growing threat of such regulation prompted the House Energy 
and Commerce Committee to move H.R. 1580, elevating language 
similar to last year's S. Con. Res. 50 from a sense of Congress 
aimed at particular treaty negotiations to a law establishing 
generalized U.S. policy.

Development of the Language of H.R. 1580

    The language of H.R. 1580 is similar to two resolutions 
introduced in the 112th Congress: H. Con. Res. 127, which 
unanimously passed the House Aug. 2, 2012, and S. Con. Res. 50, 
which unanimously passed the Senate Sept. 22, 2012, and the 
House Dec. 5, 2012. Both H. Con. Res. 127 and S. Con. Res. 50 
included a series of ``whereas'' clauses describing the 
societal benefits of the Internet and the importance its 
governance structure has played in producing those benefits. 
They also both contained a ``resolved'' clause expressing the 
sense of Congress that the U.S. Department of State and U.S. 
Department of Commerce ``should continue working to implement 
the position of the United States on Internet governance that 
clearly articulates the consistent and unequivocal policy of 
the United States to promote a global Internet free from 
government control and preserve and advance the successful 
multistakeholder model that governs the Internet today.''
    Section 1 of H.R. 1580 coverts to findings language from 
the ``whereas'' clauses of the resolutions, with minor 
modifications to reflect what happened at the WCIT and to make 
them more generalized. Section 2 of H.R. 1580 elevates the 
``resolved'' clauses of the resolutions from a sense of 
Congress aimed at particular treaty negotiations to a law 
establishing generalized U.S. policy.
    At a Feb. 5, 2013, legislative hearing and an April 10 and 
11, 2013, markup, the Subcommittee on Communications and 
Technology considered a discussion draft of what would become 
H.R. 1580. In that version, section 2 sought to make it ``the 
policy of the United States to promote a global Internet free 
from government control and to preserve and advance the 
successful multistakeholder model that governs the Internet.'' 
That language was lifted directly from the end of the 
``whereas'' clause of S. Con. Res. 50.
    During the April 10 and 11, 2013, subcommittee markup, 
Ranking Member Waxman and Ranking Member Eshoo expressed their 
belief that elevating from a resolution to a law the language 
making it ``the policy of the United States to promote a global 
Internet free from government control'' might interfere with 
FCC rules on network neutrality and possibly even efforts 
regarding IP protection, child pornography, or other government 
action. Chairman Walden explained that a statement of policy 
does not impose statutorily mandated responsibilities on an 
agency, and that just as a policy statement cannot authorize 
the FCC to adopt network neutrality regulations, it cannot 
require the FCC to strike them. He also pointed out that the 
legislation does not make illegal activity any less illegal 
simply because someone has used digital tools to perpetrate the 
act. Child pornography is no less illegal if it is disseminated 
over the Internet rather than in photographs and magazines. But 
punishing illegal activity is different than regulating the 
Internet itself. The structure of the Internet and the content 
and applications it carries are organized from the ground up, 
not handed down by governments. This allows the Internet to 
evolve quickly, to meet the diverse needs of users around the 
world, and to keep governmental or non-governmental actors from 
controlling the design of the network or the content it 
carries.
    In response, Mr. Waxman clarified that the objections 
raised by Democrats did not stem from a belief that the 
legislation would force the FCC to change its Open Internet 
rules, but rather, it would allow another party to use the 
policy statement as a basis to challenge the FCC rules. He 
expressed concern that a court might consider the policy 
statement differently than intended by the Committee.
    In recognition of the importance bipartisan agreement on 
this issue played in Dubai and on the world stage, Chairman 
Walden and Ranking Member Eshoo directed staff to try and work 
out mutually agreeable legislative language before the full 
committee markup. Based on the Chairman's commitment to work 
towards a bipartisan solution, the Subcommittee passed the 
draft legislation by voice vote, without any amendments being 
offered or debated.
    As a result of those discussions, Chairman Walden and 
Ranking Member Eshoo introduced H.R. 1580 on April 16, 2013, 
which contained slightly modified language. In particular, it 
dropped the reference to promoting a ``global Internet free 
from government control'' and focused on the remaining language 
making it U.S. policy ``to preserve and advance the successful 
multistakeholder model that governs the Internet.''
    At the full committee markup the following day, Chairman 
Walden reiterated that, while statements of policy can help 
delineate the contours of statutory authority, they do not 
create statutorily mandated responsibilities. For that reason, 
he said he did not believe the language passed in subcommittee 
would have required or prohibited U.S entities from taking any 
particular action on network neutrality or any other matter. He 
also explained that there is a big difference between 
government control of the management and operation of the 
Internet, and punishing use of it to commit illegal acts. 
Chairman Walden concluded by stating that he still opposes the 
FCC's network neutrality rules, but was willing to make the 
changes to send a unified message. He said that governments' 
hands off approach to the Internet has enabled its rapid growth 
and made it a powerful engine of social and economic freedom. 
By elevating from a sense of Congress to a law language similar 
to last year's resolution, the legislation will show the United 
States' commitment to the multistakeholder governance model and 
resolve to oppose efforts by authoritarian nations to exert 
their grip on the Internet.
    Ranking Member Waxman recognized the significance of 
striking the words ``free from government control'' from the 
operative provision of the bill and urged his colleagues to 
support the measure so Congress could once again send a strong, 
united signal to the global community. He noted that the 
modification agreed to was significant because it made clear 
that the policy statement contained in H.R. 1580 would not 
implicate the legitimate activities of the U.S. government 
online or the authority of federal agencies.

                                HEARINGS

    The Subcommittee on Communications and Technology held a 
hearing February 5, 2013, on ``Fighting for Internet Freedom: 
Dubai and Beyond.'' The Subcommittee received testimony from 
Commissioner Robert McDowell of the Federal Communications 
Commission; Ambassador David A. Gross, former U.S. Coordinator 
for International Communications and Information Policy with 
the U.S. Department of State; Ms. Sally Shipman Wentworth, 
Senior Director, Public Policy at Internet Society; Mr. Harold 
Feld, Senior Vice President at Public Knowledge; and Dr. 
Bitange Ndemo, Permanent Secretary in the Kenyan Ministry of 
Information and Communications and a Director of the 
Communications Commission of Kenya.

                        COMMITTEE CONSIDERATION

    On April 10 and 11, 2013, the Subcommittee on 
Communications and Technology met in open markup session and 
approved for full Committee consideration, without amendment, 
by a voice vote, a discussion draft of legislation to affirm 
the policy of the United States regarding Internet governance.
    Chairman Greg Walden, together with Ranking Member Anna 
Eshoo and 31 additional cosponsors, introduced H.R. 1580 on 
April 16, 2013.
    On April 17, 2013, the Committee on Energy and Commerce met 
in open markup session and ordered H.R. 1580 to be reported 
favorably, without amendment, by 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. 1580 reported. A motion by Mr. Upton to order H.R. 1580 
reported to the House, without 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 legislative 
hearing and made findings that are reflected in this report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    H.R. 1580 codifies in law the policy of the United States 
to preserve and advance the multistakeholder model that governs 
the Internet.

   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. 
1580, a bill to affirm the policy of the United States 
regarding Internet governance, would result in no new or 
increased budget authority, entitlement authority, or tax 
expenditures or revenues.

      EARMARKS, 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. 1580, a bill to affirm the policy of the United 
States regarding Internet governance, 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:
                                                       May 2, 2013.
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. 1580, a bill to 
affirm the policy of the United States regarding Internet 
governance.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susan Willie.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1580--A bill to affirm the policy of the United States regarding 
        Internet governance

    H.R. 1580 would affirm the policy of the United States to 
preserve and advance a multistakeholder model to govern the 
Internet. Such a model, currently in practice, involves groups 
drawn from civil society, the private sector, governments, 
academic and research communities, as well as national and 
international organizations.
    Based on information from the Federal Communications 
Commission and the National Telecommunications and Information 
Administration, CBO estimates that implementing the bill would 
not have an effect on spending subject to appropriation because 
the workloads of those agencies would not be affected. Further, 
enacting H.R. 1580 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 1580 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 CBO staff contact for this estimate is Susan Willie. 
The estimate was approved by Theresa Gullo, 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. 1580 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

    The Committee finds that enacting H.R. 1580 directs no 
agency to complete any specific rule makings within the meaning 
of 5 U.S.C. 551.

                      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. Findings

    This section makes a number of findings related to the 
governance of the Internet and the Internet's importance to 
society, including that:
    
  The Internet must remain stable, secure, and free 
from government control given its importance to the global 
economy;
    
  The world deserves the access to knowledge and 
economic benefits that the Internet provides and that are the 
bedrock of democratic self-governance;
    
  The structure of Internet governance has profound 
implications for competition and trade, democratization, free 
expression, and access to information;
    
  Countries have obligations to protect human 
rights, whether exercised online or offline; and
    
  Proposals to fundamentally alter the governance 
and operation of the Internet would diminish freedom of 
expression on the Internet in favor of government control over 
content.

Section 2. Policy Regarding Internet Governance

    Section 2 states that ``[i]t is the policy of the United 
States to preserve and advance the successful multistakeholder 
model that governs the Internet.''

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation does not amend any existing Federal 
statute.