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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-715

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



 
    DOMAIN OPENNESS THROUGH CONTINUED OVERSIGHT MATTERS ACT OF 2014

                                _______
                                

 December 23, 2014.--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

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4342]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 4342) 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 without amendment and recommend that the bill 
do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     7
Statement of General Performance Goals and Objectives............     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
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...................     9
Changes in Existing Law Made by the Bill, as Reported............     9
Minority Views...................................................    10

                          PURPOSE AND SUMMARY

    H.R. 4342, the ``Domain Openness Through Continued 
Oversight Matters (DOTCOM) Act of 2014,'' promotes 
accountability and transparency in the transition of oversight 
of domain name functions away from the National 
Telecommunications and Information Administration (NTIA). The 
legislation prohibits NTIA from relinquishing their role until 
the Government Accountability Office completes a report on the 
facts and consequences of any transition proposal considered by 
NTIA.

                   BACKROUND 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, the 
Internet Corporation for Assigned Names and Numbers (ICANN), a 
non-profit U.S. corporation, began managing the Internet 
Assigned Names and 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. 
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 multi-
stakeholder 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.
    These criteria are all important factors in any successful 
proposal, but there are still significant questions that remain 
to be answered before the transition should happen. The DOTCOM 
Act is intended to place a temporary hold on NTIA's transition 
process as the non-partisan Government Accountability Office 
examines the facts and consequences of any proposal that NTIA 
considers. While the criteria set forth by NTIA address many of 
the potential concerns that arise out of this transition, 
having a neutral third party evaluate the proposals and their 
adherence to the criteria helps to ensure that any successor 
solution is legitimately satisfactory and in the best interests 
of the Internet and its users. GAO is uniquely situated to 
provide an unbiased and thoughtful assessment of the transition 
and allow for others to evaluate based on the facts discovered.
    Chairmen Upton and Walden, along with Congressmen Shimkus, 
Blackburn, Kelly, and Rokita, wrote to GAO in June 2014 
requesting an initial examination of the implications of the 
transition itself. The request included a look at the current 
contract and its protections, risks of completing or not 
completing the transition, and the need for any additional 
criteria, among other questions. This preliminary GAO report is 
important groundwork for NTIA's consideration, but an 
additional examination of any submitted proposal is also 
necessary. Asking NTIA to simply pause during this 
investigative process ensures that any decision will not be 
hasty or poorly informed. While NTIA will hopefully take 
advantage of a GAO report when making their decision, nothing 
in the DOTCOM Act binds them to act in a specific way, 
regardless of GAO's findings. No matter the outcome, having a 
full picture of the facts and consequences of such a 
significant change in the basic fabric of the Internet is the 
responsible action for the government to take.
    The Subcommittee has long supported the multistakeholder 
process for Internet governance, as demonstrated by the passage 
of H.R. 1580 and H. Con. Res. 127, both of which expressed the 
sentiment that the Internet should remain free from 
international regulation. However, support for the 
international multistakeholder model does not need to be blind 
or passive.
    By taking this type of deliberate step within the 
government decision making process, the United States is better 
able to ensure that the Internet remains open and free, a 
principle the Committee has long supported. With the ever 
present international threats to these values, it is essential 
that any successor solution be scrutinized so that if or when a 
transition takes place, the operation of the Internet, an 
engine of commerce and innovation, is not affected.

                                HEARINGS

    The Subcommittee began its consideration of this transition 
shortly after NTIA's announcement of the intent to transfer to 
IANA functions. The Subcommittee on Communications and 
Technology held an oversight hearing on April 2, 2014, entitled 
``Ensuring the Security, Stability, Resilience, and Freedom of 
the Global Internet.'' The Subcommittee received testimony from 
the Honorable Larry Strickling, Assistant Secretary for 
Communications and Information at the National 
Telecommunications and Information Administration; Mr. Fadi 
Chehade, President and CEO of the Internet Corporation for 
Assigned Names and Numbers; the Honorable David A. Gross, 
partner at Wiley Rein, LLP; Mr. Steve DelBianco, Executive 
Director of NetChoice; and Ms. Carolina Rossini, Project 
Director, Latin American Resource Center, Internet Governance 
and Human Rights Program at New American Foundation.

                        COMMITTEE CONSIDERATION

    Representative John Shimkus, along with Rep. Todd Rokita, 
Rep. Renee Ellmers, Rep. Bob Latta, Rep. Joe Barton, and Rep. 
Marsha Blackburn, introduced H.R. 4342 on March 27, 2014.
    On April 10, 2014, the Subcommittee on Communications and 
Technology met in open markup session and favorably reported 
the bill to the full Committee by a vote of 16 to 10.
    On May 7 and 8, 2014, the Committee on Energy and Commerce 
met in open markup session and favorably reported the bill to 
the House 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. A 
motion by Mr. Upton to order H.R. 4342 reported to the House 
was agreed to by a voice vote. The following reflects the 
record votes taken during the Committee consideration:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      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. 4342 is to prohibit the NTIA 
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.

   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. 
4342 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. 4342 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 30, 2014.
Hon. Fred Upton,
Chairman, Committee on Energy and Commence,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4342, the Domain 
Openness Through Continued Oversight Matters Act of 2014.
    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. 4342--Domain Openness Through Continued Oversight Matters Act of 
        2014

    Under current law, the National Telecommunications and 
Information Agency (NTIA) has certain responsibilities in 
overseeing the Internet Domain Name System (DNS): 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. 4342 would prohibit NTIA from relinquishing those 
responsibilities until the Government Accountability Office 
(GAO) has prepared a report reviewing the proposed transfer. 
The report must analyze advantages and disadvantages of NTIA's 
diminished role, the proposals received from the international 
community for the transition plan, and the process NTIA and 
other agencies would use to evaluate those proposals. GAO would 
have one year after NTIA receives a proposal to complete the 
report.
    CBO estimates that implementing H.R. 4342 would cost about 
$1 million over the 2015-2019 period, assuming the availability 
of appropriated funds. That amount includes administrative 
costs that would be incurred by NTIA as a result of the delay 
in transferring its DNS oversight responsibilities to a new 
organization and costs for GAO to prepare the required report. 
Pay-as-you-go procedures do not apply to this legislation 
because it would not affect direct spending or revenues.
    H.R. 4342 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 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. 4342 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. 4342 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

    Section 2. Subsection 2(a) requires the Assistant Secretary 
of Commerce for Communications and Information to refrain from 
relinquishing or agreeing to a proposal that relinquishes the 
responsibilities of NTIA over the Internet DNS functions for a 
period of one year, during which time the Comptroller General 
will submit to Congress the report required by subsection (b) 
of the Act.
    Subsection (b) requires the Government Accountability 
Office to produce a report on the consequences of any proposals 
submitted to NTIA to transition oversight of the IANA functions 
away from the Department of Commerce. The report must contain 
detail on the role of NTIA with respect to the DNS; discussion 
and analysis of the implications of relinquishing its role; 
NTIA's criteria for evaluating submitted proposals; detailed 
analysis of the proposals received by NTIA; discussion of the 
processes and criteria used by NTIA and other agencies for 
evaluating the proposals; and evaluation of whether acceptance 
of the proposals would raise national security concerns. In 
addition, the report must include a definition of the term 
``multistakeholder'' and any other terms necessary to 
understand the report.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation does not amend any existing Federal 
statute.

                             MINORITY VIEWS

    I submit these minority views to explain my opposition to 
H.R. 4342, the Domain Openness Through Continued Oversight 
Matters (DOTCOM) Act of 2014, as reported.
    The House of Representatives voted three times in the last 
two years to reaffirm the U.S. government's commitment to a 
global multistakeholder model of Internet governance.\1\ A key 
element of this commitment is the termination of the Internet 
Assigned Numbers Authority (IANA) functions contract between 
the U.S. Department of Commerce's National Telecommunications 
and Information Administration (NTIA) and the Internet 
Corporation for Assigned Names and Numbers (ICANN), which 
represents the final stage of the privatization of the domain 
name system (DNS) first initiated 16 years ago. NTIA's March 
14, 2014, announcement to initiate the final transition process 
was a critical effort to inject fresh confidence into the 
multistakeholder model that has been under increasing attack in 
recent years.
---------------------------------------------------------------------------
    \1\H. Con. Res. 127, Roll Call Vote No. 555, 112th Cong. (Aug. 2, 
2012); S. Con. Res. 50, Roll Call Vote No. 617, 112th Cong. (Dec. 5, 
2012); and H.R. 1580, Roll Call Vote No. 145, 113th Cong. (May 14, 
2013).
---------------------------------------------------------------------------
    The DOTCOM Act suggests the U.S. Government Accountability 
Office's (GAO) judgment would supersede a consensus plan 
developed by the multistakeholder community. This unilateral 
effort stands in contrast to Congress' commitment to the 
multistakeholder approach to Internet governance and would 
create an artificial delay in the implementation of the 
transition.
    Authoritarian regimes use continued U.S. government 
stewardship of technical Internet functions as evidence for a 
need to move these functions to another governmental or 
intergovernmental entity like the United Nations. The witness 
representing civil society organizations stated at the April 2, 
2014, hearing that ``by forestalling the transfer of the IANA 
functions to the global multistakeholder community, [the DOTCOM 
Act] could further empower critics who favor a governmental or 
intergovernmental model of internet governance.''\2\ NTIA has 
also specifically stated that it ``will not accept a proposal 
that replaces the NTIA role with a government-led or an inter-
governmental organization solution.''\3\
---------------------------------------------------------------------------
    \2\House Committee on Energy and Commerce, Subcommittee on 
Communications and Technology, Testimony of Carolina Rossini, Project 
Director, Internet Governance and Human Rights Program, New America 
Foundation, Hearing on Ensuring the Security, Stability, Resilience, 
and Freedom of the Global Internet, 113th Cong. (Apr. 2, 2014).
    \3\National Telecommunications and Information Administration, NTIA 
Announces Intent to Transition Key Internet Domain Name Functions (Mar. 
14, 2014) (press release).
---------------------------------------------------------------------------
    Moreover, the DOTCOM Act misrepresents the United States' 
role in the management of the global Internet domain name 
system. NTIA's role with respect to the technical functions of 
the Internet domain name system has always been ministerial and 
largely symbolic.\4\ The U.S. government has never had any 
legal or statutory responsibility to manage the domain name 
system. This very limited role was also always intended to be 
temporary, until such time as the Internet community could 
manage these functions itself.
---------------------------------------------------------------------------
    \4\House Committee on Energy and Commerce, Subcommittee on 
Communications and Technology, Testimony of Lawrence E. Strickling, 
Assistant Secretary for Communications and Information, Hearing on 
Ensuring the Security, Stability, Resilience, and Freedom of the Global 
Internet, 113th Cong. (Apr. 2, 2014).
---------------------------------------------------------------------------
    Finally, the transition announcement has already helped 
facilitate additional support for the bottom-up, consensus-
based approach to Internet governance that the United States 
has historically championed. In April 2014, Brazil hosted the 
successful NetMundial conference where a multistakeholder group 
of technical experts, civil society, industry and governments 
all agreed that Internet governance should be built on 
democratic multistakeholder processes.\5\ In November 2014 at 
the International Telecommunication Union's (ITU) 2014 
Plenipotentiary conference in Busan, Korea, the United States 
achieved all of its objectives, including keeping the ITU's 
work focused on its current mandate and not expanding its role 
into Internet and cybersecurity issues.\6\ ICANN is also 
working on enhancing accountability, addressing a key concern 
that has been raised as part of the IANA transition process.\7\ 
Congress and NTIA must continue to actively engage with the 
global community to strengthen the multistakeholder model that 
has made the Internet an open platform for commerce, 
innovation, and self-expression for peoples around the world.
---------------------------------------------------------------------------
    \5\NetMundial, NetMundial Multistakeholder Statement (Apr. 24, 
2014) (online at netmundial.br/wp-content/uploads/2014/04/NETmundial-
Multistakeholder-Document.pdf).
    \6\U.S. Department of State, Outcomes from the International 
Telecommunication Union 2014 Plenipotentiary Conference in Busan, 
Republic of Korea (Nov. 10, 2014) (online at state.gov/r/pa/prs/ps/
2014/11/233914.htm).
    \7\ICANN, Proposed Charter for Enhancing ICANN Accountability Cross 
Community Working Group (CCWG) Submitted for Consideration (Nov. 5, 
2014) (online at www.icann.org/news/announcement-2014-11-05-en).
---------------------------------------------------------------------------
    For these reasons, I oppose H.R. 4342.

                                                   Henry A. Waxman.