Lawsuit Raises First Amendment, Constitutional Concerns
WASHINGTON — Today, the attorneys general of Arizona, Oklahoma, Texas and Nevada filed a lawsuit asking a Federal district court to enjoin the Transition from the Department of Commerce to ICANN, a California non-profit, of stewardship over the technical heart of the Internet. The complaint argues that:
- 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;
- 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;
- NTIA violated administrative law by failing to build an adequate record and respond to public comment on the matter;
- NTIA lacks statutory authority to cede responsibility over the Domain Name System; and
- 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 Transition raises serious constitutional concerns,” said Berin Szóka, President of TechFreedom. “A lawsuit is the only way to address them before the Administration takes the irreversible step of giving up America’s stewardship of the Internet.”
In yesterday’s New York Times, Szóka urged that the “IANA Transition” be broken into two parts, with the U.S. government ending its involvement in editing the master database of Top Level Domain names immediately, but waiting to end its trustee role over the domain name system until further reforms and guarantees are made to protect free speech, limit government influence, and make it harder for ICANN to leave the U.S.
“This lawsuit puts TechFreedom’s concerns squarely before a federal judge, and allows one last chance to get the Transition right,” continued Szóka. “If the states win, NTIA could still do a partial transition — provided that ICANN commits to complying with the First Amendment. Only by breaking the transition into two phases would there be time to take public comment on open questions remaining about the Transition, see how ICANN resolves open questions in Work Stream 2, and properly secure U.S. ownership of .GOV and .MIL. Then, and only then, should Congress vote to authorize a complete transition—an end to the U.S. government’s historic role as ultimate trustee over the Domain Name System. Even the Obama Administration has, in the past, used that leverage to pressure ICANN to reform itself. Giving up the right to re-bid the IANA contract before open questions are resolved would put the future of the Internet in jeopardy to meet an arbitrary political timeline.”
The lawsuit, filed in the Southern District of Texas, asks the federal court to issue an emergency injunction to stay the Transition. If a judge issues a stay, the suit could take weeks or months to work its way up through the federal courts.
“We urge the House of Representatives to join this suit,” concluded Szóka. “Congress has the clearest standing to defend its sole right, under Article IV of the Constitution, to authorize transfers of U.S. government property. Twenty-nine members of the House have supported a resolution authorizing the speaker to sue. This isn’t about U.S. government control, it’s about defending global Internet stakeholder community against ICANN’s ‘executive branch’, which may prove as unwilling to be shackled by legal safeguards as the Administration.”
We can be reached for comment at firstname.lastname@example.org. 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