The crunch: money money money money
All of those points and counter-points amount to nought, however, against what Congress is likely to do in order to halt the transition.
The Congressional push is to include language in a "continuing resolution" that funds the US government's functioning that specifically prohibits the Department of Commerce from spending any funds on the IANA transition.
Congress has passed resolutions doing exactly this three times, but it has not prevented the transition from moving forward because the DoC has effectively argued that ICANN, and not it, has been running the process. The transition would require the DoC to act, however, and so the constraints would be in force.
In what may prove to be the critical piece, the GAO has produced a document that appears to argue that the US government can move forward with the transition even if Congress acts to block the use of funds.
The GAO letter [PDF] is extremely legally dense and spends most the time arguing that if Congress did approve a similar financial constraint this month, it would apply to the DoC. However, it then notes:
As we noted, the 2016 Appropriation enacted a two-year appropriation, available in both fiscal years 2016 and 2017. In this regard, under section 539(b), if amounts appropriated under the 2016 Appropriation are unobligated at the end of fiscal year 2016 and, thus, remain available for obligation in fiscal year 2017, these funds are not subject to the prohibition of section 539(a). Because these amounts have already been appropriated in the 2016 Appropriation, they are available independent of a fiscal year 2017 continuing resolution unless Congress, in the continuing resolution, were to act to override section 539(b).
It concludes: "Thus, absent any legislation to the contrary, in fiscal year 2017, NTIA [National Telecommunications and Information Administration] could use unobligated balances appropriated by the 2016 Appropriation to relinquish these responsibilities."
Fiscal Year 2017, of course, starts on October 1, 2016. But it's not at all clear whether the GAO is saying the NTIA can use any money it has left in its budget (which we can safely assume it will find) to approve the transition unless Congress passes legislation otherwise.
And does that mean legislation as in an actual law, or would new language within a continuing resolution be sufficient to stop the NTIA from using leftover funds?
No one we have spoken to seems clear on the point. We have left a message with the GAO asking for clarity.
One thing is for sure: it will all come to a head in Washington on Wednesday at Ted Cruz's hearing.
Assistant commerce secretary Larry Strickling will be attending, as will ICANN's CEO and a number of others both for and against the transition. Ted Cruz will undoubtedly use the enormous spotlight to harangue those who want the transition to move ahead – the question is whether he is able to tip the balance in favor of extending the contract and so stop the transition.
Ultimately the decision will be made in the West Wing later that day or early the next morning, when President Obama will have to make the call whether to push ahead despite likely Congressional action – and risk making the internet a political football for the foreseeable future – or whether to take the safer approach and simply have the DoC extend its contract for a year, leaving the matter to whoever takes over the office from him.
It's a high-stakes decision. And one that could impact the internet for generations. ®