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(AP Photo/Tony Gutierrez)

“If that proposal goes through, it will empower countries like Russia, like China, like Iran to be able to censor speech on the Internet, your speech.”
–Sen. Ted Cruz (R-Tex.), in a Senate floor speech, Sept. 8, 2016

We have found from experience that the most complex topics are the most susceptible to misleading claims by politicians. That’s because highly technical debates can be easily manipulated when only a handful of experts truly understand the difficult trade-offs regarding a particular policy.

You may have heard about the debate over the pending “transition” for “ICANN,” or at least seen the headlines. Yet another obscure acronym, with apparently weighty consequences for a central part of our lives today — the Internet. Many of the stories are confusingly he-said, she-said, with experts dug in on both sides.

Cruz has seized on this issue with a fury, with a floor speech and then a hearing on Sept. 14, describing it as a real threat to the free flow of information. Our colleagues at PolitiFact Texas have already deemed as “false” Cruz’s claim that the Obama administration would give control of the Internet “to an international body akin to the United States.” So we decided to take a look at another one of the Texas senator’s claims — that the transition will hinder freedom of expression on the Internet.

The Facts

First, some definitions.

ICANN stands for the Internet Corporation for Assigned Names and Numbers. It is a California nonprofit that has supervised website domains since 1998, essentially under subcontract from the Commerce Department. If all goes according to plan, in October, the U.S. government role would end and be replaced by a multi-stakeholder community, which includes the technical community, businesses, civil society and governments. That’s what Cruz is trying to prevent.

GAC stands for the Government Advisory Committee, which as the name implies provides advice from governments to ICANN. TLD stands for top-level domain, such as “.com.” The “DNS [Domain Name System] root zone” is a list of about 1,000 top-level domain names.

At first glance. Cruz’s statement appears to make little sense. Countries such as Russia, China and Iran already censor content on the Internet in their countries, such as by shutting down all Internet traffic, erecting firewalls to prevent information from crossing the board or by attacking websites deemed a threat to the government.

Still, the introduction of some top-level domains has resulted in governments attempting, not always successfully, to limit content in some ways. Moreover, it’s not as if the United States is a paragon of virtue. Opposition from conservative groups in the United States pressured the ICANN board to kill a “.xxx” domain name for sexually explicit material. (It was eventually introduced in 2011.)

Phil Novack, a Cruz spokesman, explained the senator’s position with a statement that took some digging to figure out:

If you control the authoritative root zone file, you can control what websites appear on the Internet. Can you directly make changes to content on a specific site? No. But can you determine who gets a site, the policies governing those sites, and which sites get to operate and which sites get shut down? Absolutely.

Whoever controls the so-called ‘address book’ controls who gets and keeps an address book entry. ICANN’s new bylaws will provide ICANN with the ability not only to coordinate the allocation and assignment of names in the root zone of the Domain Name System (DNS), but also to coordinate the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains as a way to facilitate the openness, interoperability, resilience, security and/or stability of the DNS including generic top-level domain registrars and registries. In short, ICANN will have the ability to set the governing polices for the entire Internet ecosystem. Foreign governments and global corporations will have an increased voice within ICANN moving forward instead of only being able to set and enforce restrictive policies at the edge of the Internet.

These two paragraphs, along with Cruz’s quote, resulted in a four-page response from ICANN. We’ve posted the full response on Scribd for people who are deep in the weeds on this issue, but it demonstrates how sharply divided the two sides are.

ICANN says it is only a technical administrator that does not regulate content on the Internet, and that Cruz is claiming it has power that does not exist. “The U.S. government has never, and has never had the ability to, set the direction of the community’s policy development work based on First Amendment ideas,” the statement said. “Yet that is exactly what Senator Cruz is suggesting. The U.S. government has no decreased role. Other governments have no increased role. There is simply no change to governmental involvement in policy development work in ICANN.”

Experts who favor the ICANN transition are scornful of Cruz’s assertions, saying they are a mash of misinformation and falsehoods. “Simply ending U.S. approval of root zone file changes does not alter the policymaking process in ways that increase the influence of foreign governments or global corporations. In some respects, the reforms associated with the transition reduce the power of GAC by requiring it to have consensus before it can offer advice,” said Milton Mueller, a professor in the Georgia Institute of Technology School of Public Policy and author of a book on ICANN.

Even experts who are skeptical of the transition say that Cruz is overstating matters. In other words, there is more of a theoretical risk of a problem rather than a national security emergency.

“It is indisputable, in my view, that the power of governments is greater under the new regime. It will not be ‘control’ for China and Russia, but it will be significantly more influence,” said Paul Rosenzweig of the Heritage Foundation. “The dispute is really a subjective one about a predictive judgment as to whether or not governments will exert more control over ICANN in the future than they do now. We really won’t know the answer for that until five years or so after the transition occurs.”

Michael O’Rielly, a Republican member of the Federal Communications Commission, said in a Sept. 20 speech: “I have grave concerns that one or more foreign governments would be able to unduly influence or control the new ICANN.”

Rozenzweig provided the following comparison between old and new to illustrate some of the differences (which we confirmed with ICANN):

Current State
Governmental Advisory Committee (GAC) provides advice to board on matters of public policy
o GAC advice is by consensus

  • Board may reject by 50 percent+1 vote (This equals 9 votes of the board).
  • If board rejects, it is obliged to negotiate in good faith with GAC to find a resolution.
  • Requirement for consensus is in GAC operating procedures.
  • GAC operating procedures can be changed by majority vote.

o If GAC advice is by non-consensus

  • Board owes no obligation to consider, vote on or negotiate with the GAC.

Post-Transition
Governmental Advisory Committee (GAC) provides advice to board on matters of public policy
o GAC advice is by consensus

  • Board may reject by 60 percent+1 vote (10 votes).
  • If board rejects, it is obliged to negotiate in good faith with GAC to find a resolution.
  • Requirement for consensus is in bylaws.
  • Bylaws can only be changed with public comment, board action and agreement of the empowered community.

o if GAC advice is by non-consensus

  • Board owes no obligation to consider, vote on or negotiate with the GAC.

GAC may join the empowered community (EC) and vote to exercise EC powers (over board, budget, strategic plan, etc.)
o GAC may choose not to join EC.
o GAC participation in EC is currently governed by consensus requirement.
o Consensus required by GAC operating procedures.
o GAC operating procedures may be changed by majority vote.

Emily Crane Pimentel, communications director for ICANN, noted that when the ICANN board “has acted against GAC advice, the board has consistently achieved a threshold above 60 percent. This means that while the requirement has changed, there is not actually change in practice or impact.” She also said that empowered community — a new process for ICANN — is designed so that “as the GAC gains new potential areas of involvement, so does the rest of the community. The GAC’s participation in the EC, if it chooses to participate, is not on equal footing with the remainder of the EC.”

Nigel Roberts, a British Internet pioneer who took part in the U.S. government’s International Forum on the White Paper in 1998 that led to the creation of ICANN and who has been involved with ICANN ever since, said, “there’s a lot of smoke and mirrors on both sides of the discussion.” He added: “It’s true to say that in one sense there is an increase in influence for all the world’s governments, not just China or Russia. But that will be counterbalanced by a very significantly increased ability for Internet users to hold ICANN (including the board and ICANN staff in addition to government agencies) to account.”

Finally, it is worth noting that the big Internet companies, such as Google, Twitter and Facebook, have urged Congress to allow the transition to go forward. ”A global, interoperable and stable Internet is essential for our economic and national security, and we remain committed to completing the nearly twenty-year transition to the multistakeholder model that will best serve U.S. interests,” said a joint letter from tech companies. Generally, business concerns do not act against their own interests.

“Your last point confirms, rather than refutes, Cruz’s point,’ Novack said. “As Cruz noted in his hearing last week, private groups buckle to authoritarian [and even mere social] pressure all the time, especially multinational corporations seeking to expand their business. The truth is that, for them, bottom lines too often matter more than free speech.”

The Pinocchio Test

Members of Congress play a valuable role in highlighting issues of concern, but there is always a risk that the rhetoric becomes so overheated that it loses credibility. Cruz goes too far in asserting that the ICANN transition will result in Russia or China being able to censor U.S. Internet content. ICANN is basically powerless to control content on the Internet, though it can decide which top-level domains are good or bad. But there are many checks and balances placed on that power.

The transition will result in governance changes, and some experts believe ICANN is too quick to suggest that the impact will be minimal. Any new governing structure will evolve over time, and in ways that cannot easily be predicted. But such nuances are lost in Cruz’s extreme stance. We can’t quite give this Four Pinocchios, but he’s leaning too far on his skis here.

Three Pinocchios

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