Transcripts: The crunch courtroom showdown to halt ICANN's internet power grab

We dig into the ongoing legal row over IANA


Wait, can US states get in the way of a contract with Uncle Sam?

There was an important argument over whether the states had legal standing in the case and whether the district court was the right place to hear such a case.

Since it was a contract, the US government argued any issue with it should be heard through the Federal Court of Claims. The judge wondered the same thing.

The counter-argument was that the Federal Claims Court is not in a position to provide an injunction, but only to give money damages. The states only wanted the contract stopped and made no argument that they would suffer any kind of financial harm.

The judge made a related point: the files created through the IANA contract – the root zone files that act as the internet's address book of sorts – "are created by kind of a conglomerate of people on the Internet. It wasn't just created by the Federal Government," and so: "How does that belong to the Federal Government?"

This question of property is critical to any legal challenge; without the contract being ruled government property, there is literally no case to hear from this point.

In an article written after the decision was made, TechFreedom's Szoka argued that a legal judgment in the case of Sex.com – in which a domain name was held to be property – could be extended further up the internet to a top-level domain, ie, to the dot-com zone file.

Even if that legal argument was arrived at – and it's uncertain how it would happen – as the judge notes, that still would not mean that the IANA contract, which covers making changes to the zone file, is itself a property right.

Much in the same way that hiring a gardener to do your lawn does not grant him a right to your lawn.

What's more, when the judge asked how exactly the IANA contract enables the US government to impact the internet, the states' lawyer brought up the argument over the top-level domain .ping. The US company Ping wanted the extension but had to bid for it – eventually paying $1.5m – even though the other company that applied for it did not have a trademark in the name. Ping was unhappy about the situation, but the process had been decided by ICANN, the IANA contractor, and "ping" is a common name.

The judge asked in response: "Explain to me how, if that happened when the contract was in effect, how would our presence have stopped that from occurring?"

The response: "In that case, NTIA did not necessarily act in the way that Ping would have wanted, but it still maintained that ultimate authority." In other words, the US government did nothing – a point it made repeatedly when it noted its role with the contract was "purely clerical."

Going nowhere

The US government's lawyers noted that there wasn't "a scintilla of evidence that would suggest that these companies are conspiring with each other to do something bad," and argued the states "haven't provided the evidence ... they have made some allegations about bad things that could happen, but they haven't provided any evidence to support it. They have also exaggerated the extent of the NTIA and what it actually does with respect to the domain naming."

The arguments made about the process that the US government followed in handing over the contract were always weak going in – there was, after all, a huge two-year and very public process that decided the transition – but now that the transition has actually happened, those arguments are moot.

The likelihood of any court trying to make the US government pull back a contract that it voluntarily relinquished because it didn't follow the exact correct process is basically zero.

And as to the final argument – that ICANN has shown itself to be a poor guardian of the IANA contract (something that we would tend to agree with), the judge makes it plain that any abuses happened while the contract was still in effect.

"The Court notes that these past harms happened under the exact regulatory and oversight scheme that the states now seek to preserve. This, along with the evidence regarding any predictable or substantially likely events, greatly undermines the states' request for the relief that they seek."

Of course, you could take the partisan, Donald Trump view of the judiciary, where judges are biased because of their "Mexican heritage" in the case of his lawsuit. In this case, some opponents of the transition have foolishly noted that the judge, George C Hanks Jr, was "selected by Obama" – the implication being that a different judge might see things differently.

In that case, it is probably worth noting that the judge was nominated and very publicly backed by one Rafael Edward "Ted" Cruz – the man most opposed to the transition.

In short, the IANA transition is done. Any claims otherwise are pure fantasy. ®


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