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[House Report 114-175]
[From the U.S. Government Publishing Office]


 114th Congress    {                                  }      Report
 1st Session       {    HOUSE OF REPRESENTATIVES      }       114-175
======================================================================
 
    DOMAIN OPENNESS THROUGH CONTINUED OVERSIGHT MATTERS ACT OF 2015

                                _______
                                

 June 23, 2015.--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

                        [To accompany H.R. 805]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 805) 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 with 
amendments and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     3
Hearings.........................................................     6
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     6
Statement of General Performance Goals and Objectives............     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
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...................     8
Changes in Existing Law Made by the Bill, as Reported............     9
    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Domain Openness Through Continued 
Oversight Matters Act of 2015'' or the ``DOTCOM Act of 2015''.

SEC. 2. REQUIREMENTS FOR IANA STEWARDSHIP TRANSITION.

  (a) In General.--Until the date that is 30 legislative days after the 
submission to Congress of the report described in subsection (b), the 
Assistant Secretary may not permit the NTIA's role in the performance 
of the Internet Assigned Numbers Authority functions to terminate, 
lapse, be cancelled, or otherwise cease to be in effect.
  (b) Report Described.--The report described in this subsection is a 
report that contains--
          (1) the proposal relating to the transition of the NTIA's 
        stewardship of the Internet Assigned Numbers Authority 
        functions that was developed in a process convened by ICANN at 
        the request of the NTIA; and
          (2) a certification by the Assistant Secretary that--
                  (A) such proposal--
                          (i) supports and enhances the 
                        multistakeholder model of Internet governance;
                          (ii) maintains the security, stability, and 
                        resiliency of the Internet domain name system;
                          (iii) meets the needs and expectations of the 
                        global customers and partners of the Internet 
                        Assigned Numbers Authority services;
                          (iv) maintains the openness of the Internet; 
                        and
                          (v) does not replace the role of the NTIA 
                        with a government-led or intergovernmental 
                        organization solution; and
                  (B) the required changes to ICANN's bylaws contained 
                in the final report of ICANN's Cross Community Working 
                Group on Enhancing ICANN Accountability and the changes 
                to ICANN's bylaws required by ICANN's IANA Stewardship 
                Transition Coordination Group have been adopted.
  (c) Definitions.--In this section:
          (1) Assistant secretary.--The term ``Assistant Secretary'' 
        means the Assistant Secretary of Commerce for Communications 
        and Information.
          (2) ICANN.--The term ``ICANN'' means the Internet Corporation 
        for Assigned Names and Numbers.
          (3) Legislative day.--The term ``legislative day'' does not 
        include Saturdays, Sundays, legal public holidays, or days 
        either House of Congress is adjourned for more than 3 days 
        during a session of Congress.
          (4) NTIA.--The term ``NTIA'' means the National 
        Telecommunications and Information Administration.

    Amend the title so as to read:
    A bill to provide for certain requirements relating to the 
Internet Assigned Numbers Authority stewardship transition.

                          PURPOSE AND SUMMARY

    H.R. 805, the ``Domain Openness Through Continued Oversight 
Matters (DOTCOM) Act of 2015,'' ensures that Congress continues 
its oversight role of the administration's work to transition 
its Domain Name System (DNS) authority from the United States 
to the global Internet multistakeholder community. The 
legislation requires the National Telecommunications and 
Information Administration (NTIA) to submit the transition 
proposal in a report to Congress, detailing how the proposal 
comports with NTIA's stated criteria for the transition. It 
also requires NTIA to certify that the changes to the bylaws of 
the Internet Corporation for Assigned Names and Numbers (ICANN) 
required by the multistakeholder community as a condition of 
the transition have been adopted and are legally actionable 
under applicable law. Once the report has been submitted to 
Congress, the legislation allows for a review period of thirty 
legislative days before NTIA may transition its role in the 
DNS.

                  BACKGROUND 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, ICANN, 
a non-profit U.S. corporation, began managing the Internet 
Assigned 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, which are 
maintained by a third-party. 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 
multistakeholder 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.

NTIA has repeatedly stated that they will not accept any 
proposal that does not meet these criteria or that would 
replace its role with a government-led or inter-governmental 
organization solution.
    The Subcommittee on Communications and Technology held a 
hearing on April 2, 2014, to discuss the NTIA announcement and 
efforts by the multistakeholder community to meet the terms set 
forth by NTIA. At the hearing, the Subcommittee heard from NTIA 
and ICANN, as well as a panel of stakeholder witnesses. The 
discussion with stakeholder witnesses generated significant 
discussion around ICANN accountability and the topic of 
``stress tests''--a series of tests designed to simulate a set 
of ``plausible, but not necessarily probable, hypothetical 
scenarios'' in an effort to determine the resiliency of ICANN 
under any proposed solution.
    Additionally, on June 5, 2014, Chairman Fred Upton led a 
group of six Republican Members in asking the Government 
Accountability Office (GAO) to examine specific aspects of any 
IANA transition, including the national security implications 
for the United States, how to retain and enforce the 
Affirmation of Commitments, and whether NTIA should require 
ICANN to meet any additional criteria before NTIA approves a 
transition.
    ICANN's next scheduled meeting is in Buenos Aires, 
Argentina from June 21-26, 2015. NTIA has requested that both 
the IANA Stewardship Transition Coordination Group (ICG) and 
Cross Community Working Group on ICANN Accountability (CCWG-
Accountability) provide timelines for completion and 
implementation of the respective plans by the end of June. The 
existing contract for the IANA functions expires on September 
30, 2015; however, the contract can be extended by NTIA to 
accommodate a complete development and implementation process 
beyond September 30.
    Developing a proposal built to withstand hypothetical 
stress tests and takeover of government control is no simple 
task. The Committee has continued discussions with NTIA and the 
global multistakeholder community on the efforts and progress 
of the working groups in meeting NTIA's challenge to propose a 
successor solution capable of addressing the complex needs of 
the Internet ecosystem. The Committee urges NTIA, through its 
role on the ICANN Government Advisory Committee and using all 
of the tools at its disposal to faithfully pursue an outcome 
that furthers the United States' economic and national 
security.
    While the DOTCOM Act does not specify specific terms that 
must be a part of the output of the multistakeholder process, 
the Committee is acutely aware of specific issues that are of 
concern to U.S. interests.
    The Committee has heard from a number of commenters 
expressing concerns related to the treatment of the .mil and 
.gov top-level domains. By virtue of the Internet's historical 
home in the United States, our national military and government 
Internet sites are in their own top-level domains located in 
the root, rather than as domains within our country code top-
level domain. For example, the website for the U.S. Congress is 
found at congress.gov, while the Canadian Parliament is found 
at parl.gc.ca. The Committee is aware of the implications of 
expanding access to the .mil and .gov domains beyond U.S. 
government use and urges NTIA to resolve these concerns through 
the multistakeholder process. As both a beneficiary of the 
benefits of the .gov domain and the U.S. representative in the 
ICANN Government Advisory Committee, the Committee expects NTIA 
to ensure that the .mil and .gov domains are handled in the 
transition in a way that maximizes U.S. national security and 
the security of our national Internet assets. Moreover, section 
2(A)(ii) and 2(A)(iii) of the bill require NTIA to ensure the 
security and stability of the DNS and to meet the needs of 
IANA's global partners and customers, including the U.S. 
government.
    Additionally, a number of U.S. interests have raised 
concerns regarding Internet registries and registrars failing 
to fulfill and enforce their contractual obligations created 
through the multistakeholder process. Specifically, the 
Committee has heard from a number of stakeholders that they are 
not following through on requirements to prohibit use of domain 
names for illegal activity, such as spreading malware; 
operating botnets; engaging in phishing, counterfeiting, 
illegal sale of drugs, or child exploitation; stealing physical 
or intellectual property; violating trademarks; or committing 
fraudulent or deceptive practices.
    Sections 3.7.7, 3.7.7.9, and 3.18 of the Registrar 
Accreditation Agreement, and Public Interest Commitment 3(a) in 
Specification 11 of the Standard Registry Agreement, require 
registrars and registries to prohibit holders of domain names 
from engaging in illicit conduct, to investigate claims of 
abuse, and to provide consequences for violations, including 
suspension of domain names in some cases. Failure to enforce 
these provisions would call into question whether NTIA can 
certify that proposed transition meets three of the criteria in 
the bill: section 2(b)(2)(A)(i)'s requirement that the 
transition proposal support and enhance the multistakeholder 
model, section 2(b)(2)(A)(ii)'s requirement that the proposal 
maintain the security, stability, and resiliency of the domain 
name system, and section 2(b)(2)(A)(iii)'s requirement that the 
proposal meet the needs and expectations of the customers and 
partners of IANA services.
    Failure to enforce obligations created through the 
multistakeholder process would jeopardize the transparency, 
credibility, and accountability needed for the multistakeholder 
governance model to work and give credence to those who argue 
that governments, not stakeholders, must define relationships 
on the Internet. Additionally, if ICANN, registries, and 
registrars do not enforce contract terms prohibiting use of 
domain names for illegal activity, the security, stability, and 
resiliency of the system will start to decay. Lastly, failure 
to enforce obligations created through the multistakeholder 
process would suggest disregard for the needs and expectations 
of the IANA's customers and partners.
    To be clear, we are not asking NTIA to insist that ICANN 
become ``the content police.'' The Internet is and should 
remain an open forum for creativity, commerce, and 
communication. Preventing the spread of malware, phishing, 
counterfeiting, illegal sale of drugs, child exploitation, 
theft, and fraud neither chills expression nor amounts to 
censorship. In fact, enforcing contract provisions prohibiting 
use of domain names for unlawful activity will promote another 
provision of the bill: section 2(b)(2)(A)(iv)'s requirement 
that the proposal maintain the openness of the Internet. There 
cannot be healthy discourse in an unhealthy ecosystem, and 
without trust that the Internet is safe, people will be 
reluctant to engage online, whether for commercial or non-
commercial purposes. The Committee therefore asks the NTIA to 
work with ICANN and stakeholders so that the transition 
proposal ensures the contractual obligations created through 
the multistakeholder process are fulfilled and effectively 
enforced.
    Finally, the Committee adopted an amendment to H.R. 805 
that changed from ``implemented'' to ``adopted'' the standard 
for NTIA to certify that the changes to ICANN's bylaws have 
been made. The Committee made this change in response to 
concerns that the term ``implemented'' was undefined in law, 
whereas the term ``adopted'' better conforms to the norm for 
U.S. corporation law. To be clear, the Committee intends NTIA 
to ensure that changes made to ICANN's bylaws are actionable 
under California law. The changes being considered by the 
multistakeholder community include provisions to empower the 
Internet community to remove members of ICANN's Board of 
Directors and a requirement that the community approve changes 
to ``fundamental bylaws,'' including the scope of ICANN's 
mission. The Committee expects that should these provisions 
survive the multistakeholder process as conditions for the 
transition, that NTIA will not certify their adoption until 
such time as the Internet community can avail themselves of the 
terms, either through ICANN's processes or through the courts.

                                HEARINGS

    The Subcommittee on Communications and Technology held a 
hearing on H.R. 805 on May 13, 2015. The Subcommittee received 
testimony from:
           Steve DelBianco, Executive Director, 
        NetChoice;
           Danielle Kehl, Senior Policy Analyst, New 
        America's Open Technology Institute;
           Audrey Plonk, Director, Global Cybersecurity 
        and Internet Governance Policy, Intel Corporation;
           Matthew Shears, Representative and Director, 
        Global Internet Policy and Human Rights Project, Center 
        for Democracy and Technology; and,
           Brett Schaefer, Senior Research Fellow in 
        International Regulatory Affairs, The Heritage 
        Foundation.

                        COMMITTEE CONSIDERATION

    On June 10, 2015, the Subcommittee on Communications and 
Technology met in open markup session and forwarded H.R. 805 to 
the full Committee, as amended, by a voice vote. On June 16 and 
17, 2015, the full Committee on Energy and Commerce met in open 
markup session and ordered H.R. 805 reported to the House, as 
amended, by a 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. 805 reported. A motion by Mr. Upton to order H.R. 805 
reported to the House, with 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 hearing and made 
findings that are reflected in this report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    The goal and objective of H.R. 805 is to provide Congress 
with additional time to review the plan proposed by NTIA to 
transition the Domain Name System authority to the global 
multistakeholder community.

   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. 
805, 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. 805 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:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 19, 2015.
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. 805, the Domain 
Openness Through Continued Oversight Matters Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susan Willie.
            Sincerely,
                                              Keith Hall, Director.
    Enclosure.

H.R. 805--Domain Openness Through Continued Oversight Matters Act of 
        2015

    Under current law, the National Telecommunications and 
Information Agency (NTIA) has certain responsibilities in 
overseeing the Internet Domain Name System (DNS). The DNS is 
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. 805 would direct the NTIA to retain those 
responsibilities for a 30-day period after the agency submits a 
report to the Congress that contains the proposed transition 
plan and a certification by the agency that the plan meets 
NTIA's criteria for acceptance and that certain accountability 
measures have been adopted by the group of stakeholders 
proposing the plan.
    Based on information from the NTIA, CBO estimates that 
implementing H.R. 805 would have an insignificant effect on 
discretionary costs over 2016-2020 period. CBO expects that the 
new reporting requirement would not have a significant effect 
on the agency's workload. Pay-as-you-go procedures do not apply 
to this legislation because enacting the bill would not affect 
direct spending or revenues.
    H.R. 805 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 H. Samuel Papenfuss, 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. 805 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. 805 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

    This section provides that the bill may be cited as the 
``Domain Openness Through Continued Oversight Matters Act of 
2015'' or the ``DOTCOM Act of 2015.''

Section 2. Requirements for IANA stewardship transition

    Subsection (a) requires the NTIA to continue to serve in 
its role as steward of the IANA functions in the Internet's DNS 
until thirty legislative days after the Assistant Secretary of 
Commerce for Communications and Information submits the report 
required by subsection (b) of the Act.
    Subsection (b) requires the Assistant Secretary to submit a 
report to Congress that contains two certifications. First, the 
Assistant Secretary must certify that the proposal for 
transition that was submitted to NTIA by ICANN meets NTIA's 
stated criteria for a successful successor to the U.S. 
government's role in IANA. Specifically, that the proposal:
           Supports and enhances the multi-stakeholder 
        model of Internet governance;
           Maintains the security, stability, and 
        resiliency of the Internet domain name system;
           Meets the needs and expectations of the 
        global customers and partners of the Internet Assigned 
        Numbers Authority services;
           Maintains the openness of the Internet; and,
           Does not replace the role of the NTIA with a 
        government-led or intergovernmental organization 
        solution.

Second, the Assistant Secretary must certify that the changes 
to ICANN's bylaws that are required by the multistakeholder 
community as prerequisites to the IANA transition have been 
adopted by ICANN.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation does not amend any existing Federal 
statute.