Proposal for Congress-Led Suit Over IANA Transition Raises Eyebrows
A proposal for House and Senate leaders to sue NTIA to delay the Internet Assigned Numbers Authority transition is raising eyebrows among the IANA switch's backers, with several lawyers and lobbyists telling us they don't believe a legal challenge would hold up in court. A TechFreedom-led coalition of groups skeptical of the transition on Thursday urged House and Senate leaders to sue NTIA, claiming the agency is rushing the transition for political reasons. The groups also claimed NTIA violated a rider in the Department of Commerce's FY 2016 budget that bars the department from using its funds on the transition before Sept. 30 (see 1608110062). ICANN was expected to transmit a report to NTIA Friday updating its progress with implementing governance changes for the switchover but hadn't done so at our deadline.
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Americans for Tax Reform's Digital Liberty Executive Director Katie McAuliffe told us she's confident a congressional lawsuit against NTIA is “very feasible” because if NTIA doesn't extend its contract with ICANN to administer the IANA functions Sept. 30, “then all of the work that they've done since the beginning of 2016” in examining the transition “would be in violation” of the funding ban rider. ATR was one of the 25 groups that jointly urged the Congress-led suit. “There may even be a case for arguing that NTIA has been in violation of congressional appropriations just based on its online documentation related to the transition,” McAuliffe said. Congress extended the rider in the version of Commerce's budget included in the FY 2016 omnibus spending bill. The House Appropriations Committee-approved FY 2017 budget for Commerce would extend the funding ban through Sept. 30, 2017 (see 1605240067).
McAuliffe and Kristian Stout, International Center for Law and Economics associate director-innovation policy, separately said any suit against NTIA over the transition should seek a preliminary injunction to temporarily halt the change from moving forward while the case is under adjudication, given the limited amount of time before NTIA's current contract with ICANN is to expire. McAuliffe said she's not sure how a court would react to a preliminary injunction request, citing the U.S. Court of Appeals for the D.C. Circuit's decision in 2015 not to stay the FCC net neutrality and broadband reclassification order amid an ultimately unsuccessful suit by telecom and cable industry petitioners (see 1506110048).
IANA transition supporters questioned whether a Congress-led suit ultimately would be successful. Litigation by Congress against executive branch agencies “aren't unheard of,” but such a case would require a “sympathetic” judge to win in court, said internet and IP lawyer Greg Shatan of McCarter & English. “I'd expect that NTIA would stand up for internet freedom” and vigorously defend itself, he said. The House would be required to vote on authorization to allow Speaker Paul Ryan, R-Wis., to file or join a lawsuit against NTIA, which is a “tall order” at this point, said Rightside Vice President-Business and Legal Affairs Statton Hammock. It would be difficult to prove NTIA “acted improperly,” particularly given the agency's repeated assertions it has been following both the language in the funding ban rider and a previous Senate directive for the agency to do a “thorough review and analysis” of the transition, Hammock said.
Meanwhile, ICANN incorporated its Public Technical Identifiers (PTI) subsidiary to perform the IANA functions post-transition. The nonprofit corporation said Thursday that PTI's incorporation reflects additional progress toward the transition. ICANN incorporated PTI as a nonprofit public benefit corporation in documents filed with the California secretary of state's office. ICANN stakeholders recommended limited updates to PTI's draft bylaws in comments filed through Thursday. The Cross Community Working Group to Develop an IANA Stewardship Proposal urged ICANN to update bylaws to reflect that PTI's principal place of business would be in Los Angeles, where ICANN is headquartered. CWG-Stewardship urged ICANN to require that the PTI board chair be selected by a majority board vote that includes at least one ICANN-appointed board member and that the chairperson be limited to six years in that role.
CWG-Stewardship recommended increasing the length of a PTI board member's term to three years, which would conform with the length of ICANN board members' terms. The committee also recommended that certain PTI board actions, including approval of amendments to the PTI bylaws, receive a four of five supermajority board OK to pass. CWG-Stewardship Design Team O, which handled language on the IANA budget, said the final PTI bylaws reflected the IANA transition plan's language on the IANA budget. The Registries Stakeholder Group also praised the PTI bylaws.