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Sept. 29 — Four states have launched a last-ditch lawsuit against the federal government in a bid to block its plan to cede oversight of technical internet functions ( Arizona v. Nat’l Telecomm. & Info. Admin. , S.D. Tex., No. 3:16-cv-00274, complaint filed 9/28/16 ).
Texas, Arizona, Oklahoma and Nevada are alleging that the U.S. plan to transfer oversight to the Internet Corporation for Assigned Names and Numbers, a non-profit entity, would violate the First Amendment and Property Clause of the U.S. Constitution (U.S. Const. art. IV, § 3, cl. 2). The states asked the U.S. District Court for the Southern District of Texas to block the government from allowing its contract with ICANN to expire Sept. 30 as planned.
“Trusting authoritarian regimes to ensure the continued freedom of the internet is lunacy,” Texas Attorney General Ken Paxton said in a Sept. 29 statement announcing the suit. “The president does not have the authority to simply give away America’s pioneering role in ensuring that the internet remains a place where free expression can flourish.”
If the court grants the states' request, it could put the brakes on a two-year global internet community effort to privatize the internet's domain name system. The NTIA has said that it intends to allow its contract with ICANN to expire barring a significant legal or legislative obstacle.
Spokeswomen for the NTIA and the U.S. Commerce Department didn't respond to requests for comment on the suit. The states filed the suit Sept. 28, the same day Congress advanced a stopgap government funding bill that did not include language blocking the transition, despite misgivings by some GOP lawmakers and vocal opposition from Texas Republican Sen. Ted Cruz. A court hearing on the suit is scheduled for Sept. 30.
The states are alleging that allowing the NTIA to transition oversight to ICANN would be an unconstitutional disposal of government property without congressional approval. They also are arguing that allowing ICANN to perform the internet functions unchecked could harm their property interests in the .gov top-level domain.
The states argued they have “no assurance that ICANN will not delete the .gov top-level domain name or otherwise increase costs for the States.” The states operate government websites that use .gov, including www.az.gov and www.Texas.gov.
The states are arguing that the NTIA would be giving ICANN “unbridled discretion” to make changes to the internet domain name system's root zone file—which functions as an address directory for the internet on privately run computers—that could prohibit free speech online. The states contend that, by transferring oversight of this technical function to ICANN, the government is giving it control of the “vast democratic forums of the internet.”
ICANN could simply shut down .gov to prevent public access to state websites, the states argued.
ICANN had said in a June 6 letter to Assistant Commerce Secretary Lawrence E. Strickling that it won't take action to reassign the operators of the government-administered .mil and .gov domains without express written approval from the NTIA.
Attorneys who specialize in internet governance and domain name law told Bloomberg BNA Sept. 29 that they doubted the merits of the states' claims.
The suit “completely lacks merit,” said Greg Shatan, a partner at McCarter & English LLP in New York and president of ICANN's intellectual property constituency. The First Amendment has nothing to do with the root zone, he said.
A. Michael Froomkin, a professor at University of Miami School of Law who writes on internet governance and ICANN matters, said the property claim is baseless because the government doesn't own the root zone file. “What's at issue is the right to make authoritative changes to the root zone file, not to own the contents,” he said.
Neither the root zone file nor the domain name system as a whole are likely government property under Article IV of the Constitution, the U.S. Government Accountability Office said in a Sept. 13 report (21 ECLR 36, 9/14/16).
Froomkin also said the states' alleged harms at stake—that they will lose the predictability and certainty that flow from U.S. oversight of the internet functions—are likely too speculative to warrant an injunction.
The states appear to have sufficiently stated an interest in the consequences of the transition, in order to show they have standing to bring the suit, Philip Corwin, the founder of Virtualaw LLC in Washington who is involved with ICANN, said. The complaint details the states' use of the .gov domain to provide citizens with information and access to state services, he said.
Corwin said that if the complaint is dismissed, it will likely be on the grounds that the states won't prevail on the merits.
Shatan said that if the court issues an injunction, the NTIA and ICANN can extend the contract for any period of time they wish as long as the duration is no longer than an existing option period. The current option period runs from Oct. 1, 2016 to Sept. 30, 2017. But Shatan said that delaying the transition could undermine confidence in the system.
“It's sad and disappointing that the states would seek to override the hard work over two and a half years of stakeholders from around the world who have thoughtfully and carefully crafted this transition,” Shatan said.
Corwin said if the court issues a temporary restraining order, the NTIA and ICANN will likely do the shortest possible extension they think is needed—perhaps one month “in the hope that the transition can occur before” the next ICANN public meeting in Hyderabad, India, which begins Nov. 3.
With assistance from Michaela Ross
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