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Sept. 30 — A federal judge Sept. 30 rejected a late bid by four states to block a long-planned transition of internet oversight functions ( Arizona v. Nat’l Telecomm. & Info. Admin. , S.D. Tex., No. 3:16-cv-00274, 9/30/16 ).
At stake was a U.S. plan to cede oversight of the internet's domain name system, under a process the global internet community spent two years developing. The transition, widely backed in the tech sector, is set to occur as of Oct. 1, barring any last-minute obstacle.
Judge George C. Hanks Jr. of the U.S. District Court for the Southern District of Texas denied a request by Arizona, Texas, Oklahoma and Nevada to order a halt to the U.S. government's plan to allow its oversight contract with the Internet Corporation for Assigned Names and Numbers, a non-profit entity, to expire Sept. 30. The hearing took place just hours before the contract expiration.
Texas Attorney General Ken Paxton signalled Sept. 30 that he isn't giving up the fight.
“It’s a dire day in our country when the President is allowed to unilaterally give away America’s pioneering role in ensuring that the internet remains a place where free expression can flourish,” Paxton's communications director, Marc Rylander, said in an e-mailed statement. “We will continue to weigh our options as the suit moves forward.”
The quartet of states alleged that transferring oversight of the internet functions would violate the First Amendment (U.S. Const. amend. I) and Property Clause of the U.S. Constitution (U.S. Const. art. IV, § 3, cl. 2).
The states filed suit Sept. 28, the same day Congress advanced a stopgap government funding bill that didn't include language blocking the transition, despite efforts by Sen. Ted Cruz (R-Texas) and other GOP lawmakers to insert such a provision.
The Obama administration Sept. 30 told Judge Hanks that the lawsuit was too little, too late.
“Plaintiffs have unreasonably delayed in seeking this relief, filing suit less than 48 hours before the contract is due to expire by its own terms,” Assistant U.S. Attorney Keith Edward Wyatt wrote in an opposition brief that argued the states didn’t have standing to bring the suit. “Such action belies Plaintiffs’ claims of an impending emergency and should itself be a basis for this Court to deny their motion.”
A global internet community of business interests, trade associations, governments, academics and individual internet users developed the oversight transition plan. The NTIA's contract with ICANN was initially set to expire Sept. 30, 2015, but the NTIA decided to extend that contract for one year so that the community could have more time to complete its work (20 ECLR 1165, 8/19/15).
NTIA approved the plan in June (21 ECLR 937, 6/15/16) and made clear in August its intent to proceed with the transition as of Oct. 1.
“Yet, only now do Plaintiffs seek to stop the Government in its tracks,” the administration said in an opposition brief.
The administration argued that the states lacked standing to sue under Article III of the Constitution because they failed to allege an impending injury. The allegations involve potential injuries that are “entirely speculative and may never occur,” it said. The administration also said that the states don't own any top-level domain administered by ICANN. The General Services Administration administers .gov, the domain which the states use to operate government websites.
The administration also rebuffed the state's property and First Amendment claims.
The states had argued that allowing the plan to occur would be an unconstitutional giveaway of government property. But according to the administration, the internet domain name system root zone file, which is equivalent to the internet's phone book, is not government property. “It is a data file comprised of technical, locational information published in the public domain for the non-exclusive use of Internet users, and it cannot appropriately be described in terms of property interests,” the administration said.
In the midst of the hearing, a group of tech and internet companies including the ACT | The App Association, Internet Association and NetChoice Sept. 30 filed an amicus brief in support of allowing the transition to occur as planned.
“The Court cannot and should not assert its limited jurisdiction and substitute its judgment at the last minute over matters that are highly technical and have had exhaustive review over more than two years against criteria established by NTIA to ensure the smooth transition that is underway,” the companies wrote.
— With assistance from Nushin Huq
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