Federal Court Denies State AGs' Request for IANA Transition Delay

NTIA and a coalition of pro-transition stakeholders strongly opposed the TRO Friday in filings ahead of Hanks' ruling. Texas Attorney General Ken Paxton, a Republican, and three other states’ attorneys general had filed for the TRO in connection with a lawsuit against NTIA and other federal government entities. Arizona AG Mark Brnovich, Nevada AG Adam Laxalt and Oklahoma AG Scott Pruitt, all Republicans, joined the suit. The attorneys general said the federal government violated the First Amendment, the Fifth Amendment’s Property Clause and the Administrative Procedure Act in deciding to allow the move to proceed.

NTIA blasted Paxton and the other attorneys general for seeking the TRO “on the eve” of the transition “despite being fully aware of the Government’s plan to privatize the Internet domain name system, a plan that has been years in the making by the global Internet community and has recently been endorsed by Congress.” The House and Senate approved a short-term continuing resolution to fund the government after FY 2016 ended Friday that didn’t contain sought-after language to delay the handoff (see 1609220067 and 1609280067). “Only now do Plaintiffs seek to stop the Government in its tracks,” NTIA said in its filing (in Pacer). “This alone is sufficient basis to deny Plaintiffs’ request for emergency relief.”

The claim the attorneys general make about potential harms from allowing the transition to occur Saturday is “neither impending nor irreparable -- it is speculative at best and rests entirely on hypothetical future actions of third parties,” NTIA said. It said the attorneys general “have no likelihood of success on the merits of their various claims because this entire lawsuit is about whether NTIA must exercise a contractual option to extend an existing contract with a third party, which Plaintiffs plainly have no standing to litigate.” The attorneys general “cannot point to any statute or regulation requiring NTIA to exercise the contractual option,” the agency said. “It is not surprising, then, that their various theories to achieve the same result simply fall flat, such as arguing that the Government would violate the First Amendment by refusing to exercise more control of speech.”

The federal government “stands to suffer immediate and real harm if Plaintiffs’ request for emergency relief is granted,” NTIA said: “The potential for serious consequences from being ordered to extend a contract the Government does not wish to extend is very real. Such a mandatory injunction would, among other things, derail vital foreign policy efforts of the United States to ensure that the Internet’s domain name system is free from the control of any government; jeopardize the credibility of the United States in the global community; and embolden the authoritarian regimes that routinely advocate for government-led or intergovernmental management of the Internet” via the ITU.

The Internet Association, Internet Infrastructure Coalition and Internet Society were among the 15 pro-transition groups that jointly sought to file an amicus brief Friday in opposition to the delay request. The attorneys general “misconstrue the role the IANA functions play in the operation of the Internet,” they said in their proposed amicus brief (in Pacer). “IANA merely maintains and publishes registries that contain information about the agreed-upon infrastructure of the Internet. It does not determine what values appear in these registries. Nor does IANA exercise control over these registries.” Others participating in the filing included the Computer & Communications Industry Association, Information Technology Industry Council and NetChoice.

The argument the transition will result in ICANN's ability to wrest control of the .gov and .mil top-level domains away from the U.S. government “is false and technologically flawed,” the stakeholders said. “It is technically true that IANA could remove any top-level domain (including .gov, .mil, and indeed .com) from the root zone, though it has never done so without the agreement of the operator of the affected top level domain. For that reason the Soviet Union top level domain still exists on the Internet.” But “there would be an immediate reaction from the Internet” if IANA unilaterally removed a TLD, the stakeholders said. “People would stop trusting the IANA root zone, and Internet operators would find another trusted party to co-ordinate naming.”

The AGs ignore “the substantial governance changes to ICANN that were developed by the stakeholders,” the pro-switchover groups said. “ICANN is a public-benefit corporation organized under California law, and it must adhere to new strict, fundamental bylaws that the multistakeholder community itself has determined will result in transparency, responsiveness and recourse of the Community for effective, lawful management of the domains.” They also countered claims the transition is an unauthorized transfer of U.S. government property, noting a September GAO report that said the transition won't result in a transfer of U.S. government property (see 1609130050).

House Commerce Committee ranking member Frank Pallone, D-N.J., criticized the AGs Thursday for the suit. Sen Ted Cruz, R-Texas, “failed to convince his colleagues to join in his reckless plan to derail the IANA transition, so his cronies are now turning to the courts to undo the will of Congress, which was clearly expressed less than 24 hours ago,” Pallone said in a statement. “The conspiracy theories that [Cruz] and the extreme right have cooked up have absolutely no basis in fact, and their efforts to delay this transition are simply playing into the hands of [Russian Federation President Vladimir] Putin and others who want more control over the internet.”

Stakeholders continued to say Friday they believed Hanks was unlikely to grant the delay. Demonstrating the need for a TRO “carries a fairly high burden,” said ACT | The App Association President Jonathan Zuck during a R Street Institute event. ACT was one of the parties to the proposed amicus brief opposing the TRO. Zuck said he believes the lawsuit was largely a political act that's an attempt “to buy time” until Congress reconvenes after the general election to act against the transition. Milton Mueller, a Georgia Tech communication and information public policy professor, said the suit’s prospects would depend on whether Hanks “can see through” arguments like the property issue that “absolutely hold no water.”

Hanks needed to consider the foreign policy implications of delaying the transition as he considered the TRO request, said George Mason University Mercatus Center Technology Policy Program Director Eli Dourado. “Lower-level federal courts are fairly careful about wading into things that have a foreign policy impact," he said. Even a TRO that only briefly delays the transition would be harmful to the U.S.’ reputation as a supporter of multistakeholder internet governance, Dourado said: “It would still be embarrassing for the U.S. government. ... They’re continuing to deal with other countries on these issues,” including at the upcoming World Telecommunication Standardization Assembly, which is threatening to become a new battleground on internet policy issues. WTSA is to convene Oct. 25-Nov. 3 in Yasmine Hammamet, Tunisia. “In foreign policy, the U.S. needs to be able to say things and mean them,” Dourado said. “If a judge comes in at the last minute and says ‘no you can’t do this’ and the executive branch can’t keep the promises that they make, that harms U.S. credibility.”