Take it away, ICANN: US States drop internet handover lawsuit

Attorneys General face reality

A lawsuit brought by four US states' attorneys general against the US government over the ICANN internet handover has been dropped.

A notice of voluntary dismissal [pdf] was filed on Friday, two weeks after the lawsuit failed in its main goal of imposing a restraining order on the transition of the IANA contract to DNS oversight organization ICANN.

"Plaintiffs hereby provide notice that they are voluntarily dismissing this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i)," read the succinct filing, which is legal jargon for "we're dropping this altogether."

The legal action was launched on the eve of the transition of the IANA contract – which covers the internet's top-level naming and numbering functions – in an effort to prevent it from moving forward.

It sought a temporary restraining order that would have forced the US Department of Commerce to extend its contract by a year with ICANN, essentially allowing Uncle Sam to oversee IANA operations for another 12 months rather than hand everything over to ICANN. That effort was however dismissed by a Texan judge just hours before the long-planned transition was due to occur.

Despite the failure to persuade the judge, some argued that the lawsuit was still valid and that it could continue, potentially forcing the US government at a later date to re-enact its contract and force the internet functions back under US government control.

Such hopes appeared misplaced however through a reading of a transcript of the court hearing that outlined the judge's questioning and reasoning.

Going nowhere

As we outlined in a story earlier this month, the judge had serious doubts over all the key legal arguments put forward by the attorneys general.

A very public claim that the transition would break the First Amendment was roundly dismissed by the judge who pointed out that the constitutional addition only binds the US government to actions against its own citizens. The lawsuit appeared to claim that the government should be responsible for ensuring that ICANN, a non-profit California corporation, adopted the First Amendment – a position that every company in America would likely oppose.

Other claims about the possible impact of the transition were also dismissed since they were purely theoretical. And the judge appeared to agree with the US government's position that any concern about the contract should have been run through the Federal Claims Court rather than the legal system.

But the biggest factor in the decision to drop the lawsuit was almost certainly the fact that the legal representative for the lawsuit himself acknowledged that if the transition went ahead as planned, any legal action to revert back to the previous contractual position was unlikely to succeed.

"It appears that the public understanding of the contract is, when it expires, the rights that NTIA holds under the contract are extinguished," noted Brunn Roysden at the hearing on September 30.

The decision to drop the lawsuit is a clear sign that lawyers don't see any effective way to pull the transition back - and they almost certainly would have considered every option before doing so.

There are likely to be some that still cling to an idea that a new lawsuit could be launched to reverse the IANA transition but that long shot now looks like impossibility. ®

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