30 September 2016

IANA Transition: What the U.S. Government Is Really 'Giving Up'

UPDATE Oct 14, 2016: Plaintiffs State of Arizona et al filed a Notice of Voluntary Dismissal (pdf) ending the litigation referenced below.

UPDATE Sep 30, 2016: U.S. District Court Judge George C. Hanks Jr. has denied (pdf) the plaintiffs' application for "Declaratory and Injunctive Relief." The IANA stewardship transition will become effective October 1, 2016, EDT.

original post:
As of tomorrow, October 1, 2016, the IANA Stewardship Transition will be complete unless a federal judge in Texas intervenes today:
DomainMondo.com [News Review]Texas Attorney General Ken Paxton, Arizona Attorney General Mark Brnovich, Oklahoma Attorney General Scott Pruitt, and Nevada Attorney General Adam Paul Laxalt, have filed a lawsuit (pdf) in a last minute attempt to stop the IANA stewardship transition, in the U.S. District Court, Galveston, Texas, seeking declaratory and injunctive relief, including a temporary restraining order and preliminary injunction ... U.S. District Court Judge George Hanks Jr. (who was appointed by President Obama in 2015) has set a hearing for 1:30 pm CDT Friday in Galveston, Texas.
What the U.S. government is "giving up"--at least one legal scholar finds the Plaintiffs' (Texas, Arizona, Oklahoma, Nevada) arguments unpersuasive: Why the Attempt to Enjoin the IANA Transfer is Baseless | Discourse.net--
The US is letting go of a contractual right to veto alterations to the data in a computer file (the root zone file) held on a privately owned machine.  There is no intellectual property right because the contents of the file are in the public domain, and US law would not recognize this as a compilation copyright.  What’s at issue in the IANA transfer is the loss of the US government’s right to veto authoritative changes to the file, not to own the contents.
However, just as important as "letting go" of the "right to veto alterations" in the root zone file, and completely overlooked by Professor Froomkin and others, the U.S. government is also "giving up" or abandoning its right to select the IANA functions operator, at least for the Top-Level Domains (TLDs). ICANN has no right to create or recognize any new TLDs, whether generic (gTLD) or country code (ccTLD), and delegate them into the internet root, except by virtue of being the IANA functions operator pursuant to the contract with NTIA. In 2012, NTIA, the U.S. government sub-agency of the U.S. Department of Commerce which is the counter-party to ICANN in the IANA functions contract, almost pulled the contract away from ICANN:
Ethics Fight Over Domain Names Intensifies | NYTimes.com March 18, 2012: "The Commerce Department said this month that while it was temporarily extending a contract with the Internet Corporation for Assigned Names and Numbers to manage the allocation of computers’ Internet protocol addresses — and the .com and .net names of Web sites associated with them — it warned the organization that it needed to tighten its rules against conflicts of interest or risk losing a central role. ICANN, as the company is known, has filled that role since 1998. The Commerce Department said it had received no suitable bids for the contract, and was temporarily extending ICANN’s services for six months." (emphasis added)
As of tomorrow, October 1, 2016, the U.S. government will have relinquished its right to select the IANA functions operator for the TLDs in the internet root zone as configured by the 13 authoritative name servers operated by 12 different managers (Verisign operates 2). Who will have that right as of tomorrow? Technically, the "names community" which is a fictional title given to those ICANN stakeholders (dominated by Registry operators and registrars, but also including other recognized special interest groups within the "ICANN community" who are not  representative of the "global internet community" a/k/a "global multistakeholder community"--e.g. most domain name registrants are excluded from effective representation within ICANN) but excluding the numbers and protocols communities which select their own "IANA functions operator" (currently ICANN). As of tomorrow, ICANN will contractually be the IANA functions operator for the numbers and protocols communities, and PTI (the old IANA department within ICANN but now a separate affiliated entity of ICANN) will be the IANA functions operator for the "names community."

Does the above constitute a "federal property right" or otherwise give credence to any other claim in the Plaintiffs' complaint and motion for TRO? We may find out today what a federal judge in Texas thinks.

Addendum:
State of Arizona; State of Texas; State of Oklahoma; and State of Nevada v. National Telecommunications and Information Administration; United States of America Department of Commerce; Penny Pritzker; and Lawrence E. Strickling

Court Order Denying Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction [PDF, 298 KB]
Motion of Internet Association, Internet Infrastructure Coalition, Internet Society, Computer & Communications Industry Association, NetChoice, Mozilla, Packet Clearing House, ACT|The App Association, American Registry for Internet Numbers, Information Technology Industry Council, Access Now, Andrew Sullivan, Ted Hardie, Jari Arkko, and Alissa Cooper for Leave to File Brief of Amici Curiae in Opposition to Application for Temporary Restraining Order and Preliminary Injunction [PDF, 33 KB] 30 September 2016

Exhibit A – Brief of Amici Curiae Internet Association, Internet Infrastructure Coalition, Internet Society, Computer & Communications Industry Association, NetChoice, Mozilla, Packet Clearing House, ACT|The App Association, American Registry for Internet Numbers, Information Technology Industry Council, Access Now, Andrew Sullivan, Ted Hardie, Jari Arkko, and Alissa Cooper Supporting Defendants and in Opposition to Plaintiffs’ Motion for Temporary Restraining Order [PDF, 95 KB] 30 September 2016

Defendants’ Opposition to Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary Injunction [PDF, 177 KB] 30 September 2016

Declaration of John O. Jeffrey [PDF, 357 KB] 30 September 2016

Complaint for Declaratory and Injunctive Relief and Application for Temporary Restraining Order and Preliminary Injunction [PDF, 363 KB] 28 September 2016

Exhibits A to F [PDF, 4.1 MB] 28 September 2016


feedback & comments via twitter @DomainMondo


DISCLAIMER

No comments:

Domain Mondo posts: