Court Refuses to Block IANA Transition

But Courts Could Still Reverse Transition

On Wednesday, four state attorneys general sued in federal court to stop the Department of Commerce from ceding its responsibility over the technical heart of the Internet to ICANN, a California non-profit.

Today, after a brief hearing with lawyers on both sides, the judge denied the states’ request for a Temporary Restraining Order (TRO). This means NTIA can proceed with allowing its IANA contract with ICANN to lapse, and also to terminate its Root Zone Management Agreement contract with VeriSign (which requires NTIA to sign off on changes recommended by ICANN to the root zone file, the master database of top level domain names).

This ruling does not, however, resolve the underlying legal questions raised by the states. Nor does it mean the Transition is a done deal. The judge today merely ruled that the states had not shown “irreparable injury” if these two contracts lapsed. This is, in general, a very high bar. But even more than that, letting the contract lapse does not make the Transition permanent: If a court eventually rules that NTIA could not lawfully relinquish its responsibilities, it will essentially be saying that, when the contracts lapsed, control over the Root Zone File remained with NTIA, that ICANN had been exercising control unlawfully in the interim, and that if ICANN would need to negotiate a new contract with NTIA if it wants to continue exercising the IANA functions.

This ruling does not resolve the underlying legal questions raised by the states

Such a declaratory judgment would be easy to enforce: both ICANN and VeriSign are U.S. corporations, and can be enjoined from making any changes to the root without affirmative authorization from NTIA. We will be right back where we started. The contracts, in other words, are a red herring.

Now, how likely is this? The states aren’t likely to give up, but even if they do, the House may still join the fight, as could other intervenors. And even if this lawsuit fizzles, some other plaintiff could raise the issue in the future — and there’s every reason to think that it will come up in litigation between ICANN and the companies that run top level domains or sell second level domains to consumers. There is no statute of limitations on the issues raised by the plaintiffs. This issue could cast a long shadow over ICANN for years until a court finally rules on the merits.

So, how likely is this particular judge to rule in favor of the states on the merits? In general, it’s probably safe to assume that denying a TRO indicates skepticism on the merits, but in this case, it’s worth noting that the Judge, in announcing his decision, expressed his uncertainty about the issue (“some really interesting arguments”, “really made me think”, “but someone has to win”, etc.). More fundamentally, this is a really hard case — and what lawyers would call an issue of first impression: raising questions never before answered by a court.

Most notably, the hearing apparently did not discuss the Ninth Circuit’s 2002 decision in Kremen v. Network Solutions concerning sex.com, which held that property rights are property. Nor did the GAO in its recent report on the issue. If domain names are property rights, surely Top Level Domain names are, too. And if they are, why isn’t the database that manages them (the Root Zone File)? The point is just that this is a hard question, one my colleague Mike Palage first raised back in 2009 in our work about the then-pending “transition” (to a more relaxed relationship between NTIA and ICANN).

The judge may very well change his mind on the merits after considering this issue more fully. And once he rules on the merits, the decision will go to the Fifth Circuit — still a conservative bastion — on appeal. The issue could go all the way to the Supreme Court, especially if there is a Trump Administration.

This ain’t over til a court (or more than one) rules on the merits.

Open Legal Concerns

To summarize, here are the concerns raised by the states:

1. The U.S. government has long exercised exclusive control over who may edit the Root Zone File that ties together the Internet, and that abandoning this government property right requires Congressional authorization;
2. Absent a firm guarantee that ICANN will protect free speech, converting what has been a public forum into a private one would violate the First Amendment;
3. NTIA violated administrative law by failing to build an adequate record and respond to public comment on the matter;
4. NTIA lacks statutory authority to cede responsibility over the Domain Name System; and
5. By failing to secure U.S. ownership of .GOV, NTIA is tortiously interfering with the contracts that states hold for their .GOV domain names.

The Path Not Taken

Here’s the approach to the issue I urged in The New York Times earlier this week:

We should break the transition into two phases.

Phase 1: No government, including ours, should meddle in editing the master database that of top level domain names. The Commerce Department should quickly negotiate a new contract that ends direct U.S. involvement, but retains the ability to reassert that role if necessary. Importantly, this would temporarily preserve what’s always been the most important check on ICANN: Commerce’s right to rebid the transition contract if ICANN misbehaves.

Phase 2: Commerce shouldn’t end the new contract until after a trial period for the new governance model, all accountability measures and other reforms are implemented, and ICANN multistakeholder community is satisfied with the reforms.

I’ve warned all along that having a U.S. court block the transition, or reverse it after the fact, would be the worst case scenario in terms of international backlash, and in poisoning the well for a bipartisan Congressional solution that puts a post-Transition ICANN on the soundest footing possible. I’ve never wanted this issue to become fodder for yet another partisan battle — rather than a debate over the merits. And yet, here we are — as the result of the Administration angrily dismissing honest concerns about the legality of doing the Transition without Congressional approval, and about the ability of multistakeholder community to effectively govern ICANN.

Further Reading

See our other work on the IANA transition, including:

• Essays by Szóka and Brett Schaefer in The New York Times’ Room for Debate
• Berin Szòka’s testimony before the Senate Judiciary Committee on the transition
• Our white paper on the concerns that must be addressed before the IANA transition
• Coalition letter urging Congress to temporarily block the IANA transition

About TechFreedom

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

And, in case you were wondering, no one has given TechFreedom a dime to work on this issue. We have raised concerns because we actually believe them, not because someone paid us to.