A judge in Texas has fixed for Friday the hearing in a suit filed by four state attorneys general against a decision by the U.S. to transfer by month end oversight of some key internet technical functions to a multistakeholder body.
The attorneys general of Arizona, Oklahoma, Nevada and Texas filed late Wednesday a suit asking the federal court for a temporary restraining order and preliminary injunction on the proposed transfer of the Internet Assigned Numbers Authority (IANA) functions to the Internet Corporation for Assigned Names and Numbers.
ICANN, under contract with the Department of Commerce, administers the IANA functions, which include responsibility for the coordination of the DNS (Domain Name System) root, IP addressing, and other internet protocol resources. The National Telecommunications and Information Administration (NTIA), an agency within the Commerce Department, said last month it will go ahead with its plan to transfer supervision of the IANA functions to a multistakeholder body on Oct. 1, in line with a plan first announced in March 2014.
The lawsuit comes after Republicans in the Senate failed to include a provision blocking the transfer in a resolution on government funding.
The Republicans have said that the transfer would lead to authority passing to authoritarian regimes that censor the internet, though their critics say that what is being transferred are technical functions such as the coordination of the DNS functions, which really have no connection with censorship or blocking access to the internet to users.
The attorneys general wrote in their complaint to the U.S. District Court for the Southern District of Texas that they are concerned that the U.S. will lose control of the the top-level .gov domain, which is used by the states. “The NTIA currently has the authority to authorize changes performed by ICANN. Should NTIA fail to renew the contract and relinquish its approval authority, ICANN could take unilateral actions adversely affecting the .gov address,” according to the complaint.
The only control that the U.S. would have to safeguard .gov and .mil top-level domains is outlined through an exchange of letters, "which are non-binding and lack the certainty of a legal contract that would guarantee U.S. Control and ownership in the future,” added the attorneys general, who expressed concern that at some point ICANN could eventually delete the .gov top-level domain name or transfer it to some other entity.
ICANN has in the exchange of letters said it will not redelegate .mil, .gov, .us and .edu top-level domains, administered by the U.S., "without first obtaining express written approval from NTIA." Republicans, including Senator Ted Cruz, want the government to certify to Congress that the U.S. has secured sole ownership of the .gov and .mil top-level domains and a contract for the exclusive control and use of the domains in perpetuity.
The attorneys general have also held that the IANA functions are U.S. government property and their disposal would hence require approval of Congress, which has not been obtained so far. They cite from an IANA contract, entered into on Oct. 1, 2012, which declares that “[a]ll deliverables provided under this contract,” including the “automated root zone” are “the property of the U.S. Government.”
The U.S. Government Accountability Office, a Congressional watchdog, recently said in a legal opinion provided at the request of legislators that "it is unlikely that either the authoritative root zone file—the public 'address book' for the top level of the Internet domain name system—or the Internet domain name system as a whole" is U.S. government property.
Another prong of the complaint of the state officials is that the transfer has implications related to the First Amendment of the U.S. Constitution. By the transfer, the U.S. government is handing over “control of the ‘vast democratic forums of the Internet’ to private parties," and giving those parties free reign, according to the complaint.
The AGs have argued that the threatened injury outweighs any harm to defendants from a court order, which is an argument that is likely to weigh in their favor when the judge decides on their immediate demand for a temporary restraining order and preliminary injunction on the decision of the federal government. The officials have also asked for a judgment and permanent injunction against the transfer.
Tech companies, including Google, have supported the transition of the IANA functions to ICANN. The U.S. government’s contract with ICANN was always meant to be temporary, and since ICANN was created in 1998, the U.S. "has invited the global Internet community to decide the Internet’s future in a bottom-up fashion," wrote Kent Walker, general counsel at Google, in a blog post Monday.
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