2016-05-25

IANA Transition, What's Next, Years of Litigation in U.S. Federal Courts?

Excerpt from IANA Functions Contract between ICANN and US government (p. 31, July 2, 2012) (pdf)
After Tuesday's Senate Commerce Hearing, it appears the movement to extend the IANA functions contract (currently due to expire September 30, 2016), "for the next two years until the new structure proves itself and the details of Work Stream 2 are fully developed and their implications understood" (see prepared testimony of  Brett Schaefer), has increasing support on Capitol Hill.

As the Obama Administration and NTIA have stated, the "community" has only one chance to get this right (though still unclear which community is being referred to: "ICANN community" or global internet community a/k/a global multi-stakeholder community?).

Several U.S. Senators, including Senator Ted Cruz, have already requested NTIA extend the IANA functions contract with ICANN, and Senator Marco Rubio (with other Senators) has also sent a letter requesting delay (pdf), and may also be gathering more signatures requesting same, based upon his remarks at the Senate Commerce Hearing. Even one ICANN community stakeholder from India stated following the hearing on Tuesday: "... In many ways, a soft interim role for the US Government, or a short delay would actually ensure that the transition details are gracefully accepted by the whole world."

But the issues are even deeper than those aired at the hearing, and include future jurisdiction of ICANN, federal property issues, and probably most troubling, antitrust issues as raised in the prepared testimony of Richard Manning at the Senate Commerce Hearing (embedded in full further below):
"That [40 U.S.C. 559 (b)(1)] is a huge liability for ICANN, and potentially for anyone involved at the agency if the provision of the contract stating “All deliverables under this contract become the property of the U.S. Government” was deliberately ignored. No more so than because 15 U.S.C. Section 2 prohibits and makes a felony any attempt “to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. Sections 13 and 14 forbid any business practice where the effect “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” Antitrust law challenges to IANA functions administrator were anticipated in the 1998 statement ... Yet, to date, the White House has failed to produce the legal basis for transferring the IANA functions without Congress, despite numerous requests ..." (Manning, infra, pp. 6-7, emphasis added)
Prepared testimony of Richard Manning (highlighting added) at Senate Commerce Hearing:


It's not hard to see where this could all be headed. If the Obama administration and NTIA refuse to extend the IANA functions contract, then ensuing federal court litigation, with restraining orders and injunctions, could be filed before September 30, 2016. The irony is that in such case, final determination of the issues in U.S. courts will likely exceed the 2-year time extension being requested.

The common sense approach would be to extend the contract to September 30, 2018, and perhaps even ask for Congressional approval of the IANA transition, to avoid litigation. But the ICANN-IANA transition proponents who testified at the Senate Commerce Hearing, appear to have hardened their positions. Which is why we have a federal judicial branch of government. The lawyers are waiting.

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