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Restraining Order Filed by US States’ Attorneys in the Final Hours of IANA Transition

UPDATE 30 Sep 2016: Court denies Plaintiffs motion for a temporary restraining order allowing IANA transition to proceed as planned.

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With less than 24 hours to go before the historic contractual relationship between the US government and ICANN is set to expire, a motion hearing is expected to be held today based on a lawsuit filed in federal court in Texas by four states’ attorneys generals which could lead to NTIA facing the possibility of a temporary injunction.

— Texas Attorney General Ken Paxton along with Arizona Attorney General Mark Brnovich, Oklahoma Attorney General Scott Pruitt, and Nevada Attorney General Adam Paul Laxalt have filed the lawsuit in Texas in U.S. District Court Southern District of Texas, Galveston Division. The “Plaintiff States” are seeking declaratory and injunctive relief against the National Telecommunications and Information Administration (NTIA); the United States of America; the United States Department of Commerce; the Secretary of Commerce; and the Assistant Secretary for Communications and Information.

But “attempt to enjoin the IANA transfer is baseless,” says law professor Michael Froomkin: “The APA claim is bogus. I think they lack standing for the property claim. The property claim is also meritless, as the government is not giving away any property it “owns”. The US is letting go of a contractual right to veto alterations to the data in a computer file (the root zone file) held on a privately owned machine. There is no intellectual property right because the contents of the file are in the public domain, and US law would not recognize this as a compilation copyright. What’s at issue in the IANA transfer is the loss of the US government’s right to veto authoritative changes to the file, not to own the contents.”

“The transition is not ‘giving the Internet away,’ neither to foreign governments nor to ICANN,” says Milton Meller, Professor at Georgia Institute of Technology School of Public Policy: “It is giving the Internet to the people—the people who use it, operate its infrastructure and run its services. The people of the Internet—the ‘global multi-stakeholder community’ to which the Commerce Department referred in March 2014 when it kicked off the stewardship transition—are not confined to the United States. They are everywhere. If freedom entails the right to self-governance, then the transition promotes and advances it.”

Update 30 Sep 2016: Organizations and individuals within the Internet’s technical community file an amicus brief in the lawsuit filed by the Attorney Generals of Arizona, Texas, Oklahoma and Nevada seeking to enjoin the IANA Stewardship Transition: “This is a vitally important and dangerous case, and Plaintiff Arizona has filed a last-minute motion for an extraordinary injunction: it asks the Court to force the United States to enter into a contract that the Government has determined is not in the interest of the United States. The Plaintiffs, who failed to participate in an open, transparent, two-year process of deliberating and reaching consensus on the IANA stewardship transition, now urge the Court to act hastily on claims that are baseless. A temporary restraining order to disrupt that transition would pose a significant threat to a free and open Internet and its many stakeholders both in the United States and across the world. The gravity of the threat has brought major organizations and experts together as Amici here in record time, filing this brief less than 24 hours after first hearing about the lawsuit and motion. The Amici urge the Court to deny the motion.”
(HT John Levine, see Comment #1)

Update 30 Sep 2016: Court denies Plaintiffs motion for a temporary restraining order thus allowing IANA transition to proceed as planned.

Official order released: “The Court DENIES The Application for Declaratory and Injunctive Relief, for the reasons stated on the record.”

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Responses John Levine  –  Sep 30, 2016 8:24 PM

The government’s response is here:

A group of organizations and individuals with ties to the transition filed an amicus brief here:

They make all the counterpoints discussed above, and more. The judge should dismiss this for lack of standing without having to address the (lack of) merits.

It failed John Levine  –  Sep 30, 2016 10:21 PM

The judge denied the petition, so the IANA transition remains on track for tonight.

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