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U.S. States sue to block IANA transition

Four conservative states take up Cruz’s failed crusade to block IANA contract expiration.

Attorneys General of four conservative states have filed a lawsuit (pdf) in an effort to block the U.S. government’s contract with ICANN for IANA functions from expiring tomorrow night.

The move comes after an effort led by some congressional representatives, including Ted Cruz of Texas, apparently failed to block the transition in a continuing resolution that keeps the federal government operating.

The suit was filed by the States of Arizona, Texas, Oklahoma and Nevada against the National Telecommunications and Information Administration (NTIA), The United States of America, U.S. Department of Commerce, Secretary of Commerce Penny Pritzker, and Assistant Secretary of Commerce Lawrence Strickling.

Given the tight timeframe, the suit asks for a temporary restraining order.

The crux of the states’ arguments is that letting the contract expire violates the property clause of the constitution as well as violates the first amendment.

Both of these arguments have been frequently put forth by opponents to the transition.

The U.S. Government Accountability Office (GAO) has already determined that the expiration of the contract is unlikely to constitute a transfer of government property.

The first amendment argument has been widely debunked. The IANA functions do not cover content, and this is usually regulated by governments within their own borders. The only way the IANA functions have been used to impact free speech in the past was, ironically, when the U.S. government temporarily blocked the addition of the .xxx top level domain name.

So what’s the danger? What if a local judge grants a restraining order that halts the process for a while? As Kieren McCarthy explains in DNW Podcast #103, it would empower governments to create an alternative to the existing naming system and its governance, ultimately resulting in more government control of the internet, not less.

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  1. John Berryhill

    The smorgasbord of reasons why this piece of grandstanding will be thrown out is so large, it is hard to choose from.

    It is no mystery that the contract was long set to expire by its own terms tomorrow. To come in on a TRO the day before, in an action in which state governments are looking for an order demanding a federal official to do something which is entirely within his statutory authority not to do, and based on entirely hypothetical harm is, um, “optimistic”.

    • Xiristatos

      Even more stupid is that these STATE governments decided to sue the FEDERAL government and agencies over something that’s set to happen in ONE DAY, and they’re all bringing this… to a southern district court in Texas.

      Like, I’m not even sure that one random district court has any significant power to stop the federal government from doing anything, let alone in such a short timeframe… and not even mentioning the fact that that isn’t government property to begin with…

      Now that’s what you call “desperation”.

    • John Berryhill

      This is a two-fer: So-called “conservatives” fighting to keep something under government control and then, after failing to do so through representative politics, turning to an unelected judge to order the result they desire.

        • John Berryhill

          By “everything” do you mean the formation of ICANN in 1999 for the purpose of this transition?

          I don’t understand why some people believe this is a “new” thing. It was the POINT of forming ICANN in the first place.

          • Nick

            Maybe cause what you are saying is factually untrue. The the formation of ICANN in 1999 was not for this purpose. It was formed simply to “Improve the Technical Management of Internet Names and Addresses”

            I don’t understand why some people just make up things.

  2. Jeff Schneider

    Hello Andrew,
    All that really needs to be done is hold off succession, till elections are over. Once all the many side implications of transfer are
    understood, and the ICANN, SEM tie ins to collusion , are exposed, succession will be torpedoed. There are many other threats to national security involved, other than the ones that have been discussed so far. JAS 9/29/16

    Gratefully, Jeff Schneider (Contact Group) (Metal Tiger) (Former Rockefeller IBEC Marketing Analyst/Strategist) (Licensed CBOE Commodity Hedge Strategist) (Domain Master https://www.UseBiz.com

    • John Berryhill

      You didn’t happen to be formerly known as “Jeff Williams” did you?

      Curiously,

      John Berryhill (Bowling Team)(Origami Penguin)(Former Slovenian Model/Escort)(Licensed Poet)

      • Jeff Schneider

        Hello John Berryhill,

        Thanks for allowing us to differentiate ourselves. I , (Jeff Schneider), along with my (Contact Group) think tank, have been analyzing and Strategically formulating Business Model Rollouts for 45 years, with combined group professional experience even deeper than that. My roll as team leader segued from a career, functioning as the Marketing Analyst/Strategist for the Rockefeller I.B.E.C. Group.
        Sorry our Differentiating Signature threatens your ego, old chap.

        Gratefully, Jeff Schneider (Contact Group) (Metal Tiger) (Former Rockefeller IBEC Marketing Analyst/Strategist) (Licensed CBOE Commodity Hedge Strategist) (Domain Master https://www.UseBiz.com

  3. Aaron Strong

    “As Kieren McCarthy explains in DNW Podcast #103, it would empower governments to create an alternative to the existing naming system and its governance, ultimately resulting in more government control of the internet, not less.”

    So let’s get this straight. If we don’t move forward with the transition the proponents are saying that authoritarian regimes with community censorship would create an alternative to the internet? Thus, this would somehow lead to more governmental control?

        • John

          “So what’s the danger? What if a local judge grants a restraining order that halts the process for a while? As Kieren McCarthy explains in DNW Podcast #103, it would empower governments to create an alternative to the existing naming system and its governance, ultimately resulting in more government control of the internet, not less.”

          For real? Seriously? I didn’t even bother with that podcast this time.

          In case anyone didn’t notice, that is a regurgitation of the original threat mantra about “Balkanizing” the Internet if those who want the “transition” don’t get their way, pushed like a campaign sound bite to sell it to begin with. Otherwise known as “give up, or we’ll break up.” Does anyone really take that ridiculous empty threat spin job nonsense seriously? Do I really have to remind people again that even Michael Berkens debunked that “bull spit” during a DomainSherpa video panel discussion with some common sense?

          Does anyone except the obvious die hard supporters of this “transition” consider it even the least bit credible that the “international community” would even dream in their most booze-stultified nightmare of cutting themselves off from the US market or from each other that way – with the possible exception of The Land of the Morning Calm and its wise leader in a moment of contemplative field guidance – which they could have done any time before now, and could still do any time after the threatened-for “transition” if they still want as Mr. Berkens also so sensibly pointed out in the aforementioned Sherpa episode?

          • Andrew Allemann

            I don’t know if it will happen or not. It’s just the threat. And the reason this was pushed along is because governments had already started to push for an alternative.

          • Aaron Strong

            Exactly John!…What is amazing about the whole issue is that the proponents of the transition are becoming surrogates for the authoritarian regimes. These surrogates admit there is a threat, they admit the regimes abuse human rights, yet they continue to endorse the transition on behalf of the authoritarian regimes.

          • John

            Heavy to say, but definitely have to agree with you, Aaron. The proponents are playing right into it like that. Some may also have their own axe to grind about “America,” including those who were born and raised here with mom, apple pie and baseball and have benefited from being here. My white male friend who went to Harvard Law at a young age after growing up poor by our standards and has enjoyed all the fruits of success and advantages of being here – how well I remember the time he went on his little enlightened rant about how much he hates this country yada yada yada decades ago now.

            And Andrew, that’s “appeasemen,” and we know from history where appeasement leads. Furthermore, it’s an empty threat. Surely you are 100% familiar with the phenomenon of repeating something over and over again to make it true in people’s minds, especially in politics. That is what that is and always has been. Furthermore, “they” couldn’t and didn’t even want to keep that story straight and “stay on message” with it, because it was reversed for a while. The new spin for a short time was “oh, did they say they want us to do the transfer? No, no, they oppose it and are the ones who are really against it.” I’ve been trying to find the old article where that new twist was quoted from some bigwig but unfortunately I didn’t file it away.

            If we didn’t have an administration all too happy to weaken and destroy the US in part, one need only say “call their bluff,” because that’s all it is. But unfortunately we don’t. And for the record, I didn’t form that belief because I’m a “conservative” or because of ideology or because I’m picking up on others having stated it, but that was and has always been since the honest independent conviction of the soul I formed completely on my own when I would rather not have and was completely ready for the opposite to be true – that we are dealing with a president who really does hate America in part because of his own life experiences and who really does want to weaken the country in part the way he already has. And let’s not forget about the looming threat of TPP while we’re at it. If I thought for one moment a transition did not pose real, huge and serious risks I would not have any problem with it. But I have too much experience with how corrupt and how corruptible people can be. Our country certainly isn’t perfect and has committed it’s share of “sins,” but it’s still the best option and best hope for ensuring freedom of speech, publication and opportunity, and the Internet and DNS being invented here also does count. Anyone who thinks the motives of the “international community” are clean – well, it’s hard to believe anyone could. Even Bill Clinton is on record about that.

  4. Christian

    ““Trusting authoritarian regimes to ensure the continued freedom of the internet is lunacy,” said Texas Attorney General Ken Paxton in a statement. “The president does not have the authority to simply give away America’s pioneering role in ensuring that the internet remains a place where free expression can flourish.””

    “House Republicans, however, have not yet decided whether they intend to launch a legal action of their own against the Obama administration over the internet issue.”

    State AGs sue to stop Obama’s internet transition
    http://www.politico.com/story/2016/09/state-ags-sue-to-stop-internet-transition-228893

  5. John Berryhill

    A hearing on the TRO has been scheduled at 1:30 PM on 9/30 before Judge George C. Hanks Jr.. Judge Hanks has been on the bench since his appointment by President Obama was confirmed in April, 2015.

    • Aaron Strong

      Law professor’s are notorious for making horrible decisions. I will take the comments from anonymous people, thank you anyway….There must be a tipping point in law school where common sense is lost, I am just saying….

        • John

          Well while my post with links to the guy and one of his articles (“Professors Perspective: Obama’s dangerous internet giveaway”) is awaiting moderation, check out law professor Mark Grabowski, Aaron.

          • John Berryhill

            For the sake of accuracy, Prof. Grabowski is not a “law professor”. Adelphi University does not have a law program. He is an associate professor of communications. (there is a joint program where one can do three years at Adelphi, and then three years at a law school and still get an undergrad degree from Adelphi, which has nothing to do with Prof. Grabowski). I’m sure he’s a fine guy, but “law professor” he is not, and your assertion otherwise is false.

            However, you also seem not to understand that the primary issues presented by the filing have nothing to do with the underlying substantive claims about the transition.

      • John Berryhill

        So there is no need to even consider the argument or criticize it?

        Prof. Froomkin has been among ICANN’s harshest critics. He was a cofounder of icannwatch.org, which was the go-to source for information about ICANN’s flaws and failures.

        This has nothing to do with one’s stance on the transition whatsoever. I know that people think you go to court and the judge can wave a magic wand to make all your dreams come true. But before you can do that there are basic issues of standing, pleading requirements to make out a cause of action as stated, and the heightened burden for the plaintiff in the context of a TRO. There are also basic separation of powers, federal supremacy in relation to express statutory authority, the specific duty requirements of the mandamus statute… and several other procedural issues presented by a case brought by states to mandate the action of a federal agency acting within the scope of its statutory authority.

        Their proposed order itself demonstrates they don’t in fact actually know what needs to happen to extend the contract.

        They are not even parties to this contract, incidentally, but are claiming as implicit third party beneficiaries. Perhaps another lawyer will jump in here to point out the significance of that alone.

        And they are doing this on a TRO, knowing the contract was intended to expire now for months, in which the standard requires one to show imminent, actual, palpable harm. All of the harm pleaded is entirely hypothetical. You can’t get a TRO because you think that something bad might happen to you if you don’t get one. You have to show that it is going to happen.

        The list goes on and on. Why this thing is a loser has nothing to do with whether the transition is or is not a bad idea.

        All that aside, this is coming before a judge who knows nothing about any of the substantive issues, but to whom it will be quite clear that the substantive issues presented are simply not “no brainers” of the type to which a TRO is geared. Among the other requirements of s TRO is that it has to be really clear that you would ultimately win. The notion that in one sitting – and these hearings are short – the judge is going to wade into clearly disputed waters and see a “no brainer” here is wildly optimistic.

        • John Berryhill

          What does that article have to do with the procedural issues presented by the filing by a handful of state AG’s for a TRO in Texas?

  6. John Berryhill

    Lol…

    Arizona wanted to phone it in:

    ORDER denying Motion for Counsel to Appear Telephonically at Hearing on September 30, 3016.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 09/29/2016)

  7. scrivener3

    The Internet is giving tremendous trouble to the powers that be, both domestically and internationally. From the forged Bush National Guard letter (exposed by Powerline), the Hillery stagger (which would have never been on mainstream media) to the sordid background of Miss Venezuela. The comment sections of most major news outlets reveal what the public has been thinking about the establishment narrative.

    Washington and the other capitals would love to shut just shut it up.

    • scrivener3

      Failed to mention many other government embarrassments exposed by the free operation of the Internet:

      East Angola University email dump showing climate change was less science and more politics.

      Snowdown and the NSA.

      Wikileaks.

      Drudge exposing Clinton’s affair with Monica

  8. John Berryhill

    For those interested in reading both sides of an argument, the NTIA has filed its brief in opposition to the TRO:

    https://t.co/p7X8dJq6Ii

    I realize that making up one’s mind by hearing both sides is an outdated concept to some.

    • scrivener3

      The merits of this case are crappy. The govt brief is a good brief. It should have never come to this. The fact that a lot of other people were demanding more say in the internet does not justify giving them more say.

      My kids demand more say in my household budget.
      Good luck with that.

      No one asket these other countries to join the Internet. They could have had their own networks and had gateways for email, http, whatever to pass between the two networks (like compuserv and AOL once had Internet gateways for email). They wanted to and did join this network that we were administering. I’ll bet part of its attraction was the way we administered it. Even Putin could register a .com and it would work perfectly. Everyone treated fairly by the rule of law.

      Now they want a say, and the US maybe likes the idea because in the new ICANN the US will have a say too. If ICANN slowly decides hate speech should be banned, well, we’ll have input in what is hate speech. Somehow I suspect criticism of the POTUS or Mohammad will equally be found to be prohibited hate speech.

  9. John Berryhill

    Aaron, I do have a question for you…

    If terminating the contract was unconstitutional or otherwise illegal, then do you agree that the contract was likewise unconstitutional or illegal for having included termination provisions in the first place?

    You do realize that the argument against termination is an argument that the contract was improper from the get-go, yes?

    • Aaron Strong

      You seem to be over complicating the issues and concerns as well as implying those opposed to the transition are less informed and educated. Put the emotions aside, it makes for a much better debate.

      The proposed transition is a transition of great power. This power give away was never intended to go to authoritarian regimes with advisory roles within a multistake model, as you have alluded. Possibly the original contract was improper from the get go. I won’t argue that point, but it is unconstitutional to give, trade or sell United States property without congressional approval….Here is a question back to you. If the transition is Constitutional, why are the proponents, typically Democrats, so quick to rush this process without Congressional approval?

      • John Berryhill

        “Put the emotions aside”

        What is “emotional” about pointing out that the contract always had a termination clause in it?

        “If the transition is Constitutional, why are the proponents, typically Democrats, so quick to rush this process without Congressional approval?”

        Government agencies do hundreds of things within the scope of their authority every day, without requiring Congressional approval. “This process” has been going on since 1997, as pointed out (with citations to the relevant references) in the briefs which have been filed today by the NTIA and by a roster of amici.

        It has certainly been known for quite a number of months that NTIA would not be renewing the contract, after an exercise spanning several years by the CCWG. The only “rush” going on here is on the part of four state AG’s who have come in literally on the last day, because they believe that four politicians and a judge in Texas are a more appropriate mechanism for internet policy than the collaborative efforts of NTIA and ICANN, over which Congress has had multiple oversight hearings and which Congress has decided not to stop.

        This issue has been squarely before Congress. It was just a few weeks ago that Cruz et al. were rallying their colleagues to prevent the transition. Congress did not do so. If you want to bring parties into it, then it is beyond dispute that Republicans are the majority of both houses of Congress. There are no “mostly democrats” who can move legislation to either floor.

        It has been no secret – for quite a long time now – that the contract expiration date was today. The expiration date has been today for a quite leisurely review. The only “rush” here is best characterized in the NTIA brief itself:

        “They ask for emergency relief on the eve of the contract’s expiration, despite being fully aware of the Government’s plan to privatize the Internet domain name system, a plan that has been years in the making by the global Internet community and has recently been endorsed by Congress. Indeed, since 1997, the Government has advocated for, and been on a path to “make the governance of the domain name system private and competitive and to create a contractually based self-regulatory regime.” (fn 2) The current contract, and its specific duration and terms, are part of that path. More specifically, not only did NTIA announce as early as June 2016 that it had received a transition plan that met the Government’s criteria, but also as of August 16, 2016,
        NTIA made clear its intent to allow the contract to expire and to proceed with the proposed transition. Yet, only now do Plaintiffs seek to stop the Government in its tracks.”

        I answered your question. Would you like to answer mine? Was the termination clause itself “illegal” in the contract as-written? Yes or no?

        • Aaron Strong

          Without seeing the termination clause I would be unable to evaluate it’s legality. I do feel that the issue you bring up is working backwards and spins from the main transition issue. If the transition occurs, the security of the DNS root zone will be applicable to the CONFLICT OF INTEREST clause written in the contract.

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