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Four US states demand restraining order to stop internet power handover to ICANN
Arizona, Texas, Oklahoma, Nevada sue Uncle Sam
Time to play a wildcard: The First Amendment
The other claims are also on shaky ground, although not without merit – which may point to a TRO being approved.
The First Amendment claim has long been pushed by Senator Ted Cruz as a reason to stop the transition, but the argument seems built on a willful misunderstanding of how the domain name system actually works.
This is the current version of that argument: "Without inclusion in the root zone file, a person wishing to speak on the Internet could publish content, but that content would be near-impossible to find and the speaker would be virtually deprived of any audience that could hear the speech. Therefore, inclusion in the root zone file acts as a critically important license to speak in the designated forum."
That statement is simply not true. The IANA contract at the heart of the argument only points to other servers. So, for example, if you wish to go to "example.com," the query will go first to the root zone file – edited by the IANA contract – and it will say where to go to find all the addresses underneath .com. It is that file – in this case run by Verisign – that then points to individual website addresses.
(In reality of course, there is an enormous amount of extra capacity and caching built into the internet, so your computer will very rarely, if ever, go directly to either the root zone file or even Verisign's file to find out where "example.com" is.)
The IANA contract, put simply, is so far removed from actual content on the internet that a First Amendment argument does not hold water.
The three remaining claims are very legalistic and built around interpretation of federal laws. It is probably safe to assume that the federal government would win an argument on such ground.
The lawsuit argues the contract is government property – and uses the NTIA's own documents to argue that it recognizes it as such. The Department of Commerce recently addressed this issue by asking the Government Accountability Office (GAO) to look at it, and the GAO concluded that it was "unlikely" that the transition involved the transfer of government property.
Whether the NTIA followed the correct procedures in approving the IANA transition is in the weeds and quite likely a moot point. The NTIA asked ICANN to run a consultation process for the handover and that was a long two-year process that was open to anyone willing to put in the enormous time and effort.
The process also received an enormous amount of attention, so it is going to be very hard for the states to argue persuasively that the public comment process that is designed to ensure that decisions are not made in secret is valid in this case.
And the last claim – that the NTIA doesn't have the authority to hand over the contract – is also a little odd. For nearly 20 years, the NTIA has awarded and re-awarded the IANA contract to ICANN. To say at this late stage that it never had the authority to do so is not something we would expect a judge to give much weight to.
This is a last ditch effort by those opposed to the IANA transition to stop it from proceeding.
Digging into the arguments, there doesn't appear to be sufficient substance to prevent a transition. But that doesn't mean that a Texas judge will refuse the request for a temporary restraining order, especially since the most persuasive argument made in the lawsuit is that the "threatened injury outweighs any harm to Defendants."
In other words, no real harm will be caused by delaying the transfer – the Department of Commerce will simply extend its existing contract and things will continue on as they have for 20 years – but that there could be harm if the transition moves ahead.
It seems that the fate of the transition this week will rest on how persuasive the federal lawyer, who is presumably on a plane to Texas right now, is. ®