By Amir Nasr
September 30, 2016 at 5:12 pm ET
The U.S. government is set to cede control of the internet’s domain naming system to an international nonprofit on Saturday, but it’s facing a last-minute legal challenge from four GOP state attorneys general.
State AGs from Arizona, Nevada, Oklahoma and Texas filed a lawsuit in a federal court in Texas Thursday alleging that the transition would violate the Constitution and called for the courts to block it from moving forward. If the courts grant a stay in the transition, it could mean that the Commerce Department would need to run the system for as long as another year.
Internet companies are not happy with the lawsuit, and they challenged the decision Friday, filing an amicus brief in support of the U.S. government.
“The case before the court is without merit and we request that the court deny any motions seeking a delay of the IANA transition,” Michael Beckerman, president of the Internet Association, said in a statement.
The Internet Association represents companies such as Facebook Inc. and Google Inc.
The tech group’s brief calls the case “vitally important and dangerous,” adding that stalling or blocking the transition would “pose a significant threat to a free and open internet and its many stakeholders both in the United States and around the world.”
The filing also said the GOP attorneys general “failed to participate in an open, transparent, two-year process of deliberating and reaching consensus” on the transition.
The Computer and Communications Industry Association, NetChoice, Mozilla, the Internet Infrastructure Coalition, Internet Society, ACT the App Association and Access Now were among those listed on the brief opposing the lawsuit.
It’s crunch time now. If the court grants a temporary restraining order to block the transition, the U.S. government would likely have to re-sign its contract with the internet domain naming system. The contract expires at the end of Friday.
The National Telecommunications and Information Administration holds a contract with the Internet Assigned Numbers Authority to run the governing body that oversees domain names.
The U.S. government has sought to move control over the body to a privatized group of international stakeholders since the Clinton administration, and the plan began to materialize this past year.
NTIA filed a brief in defense of the transition plan, arguing that it has made its intentions clear long before the eve of the transition. The agency announced in June that the proposed transfer of power met the government’s criteria and would be safe. It issued another statement in August that said the agency would move forward “barring any significant impediment.”
“Yet, only now do plaintiffs seek to stop the government in its tracks,” NTIA said in its brief. “This alone is sufficient basis to deny plaintiffs’ request for emergency relief.”
NTIA also dismissed the lawsuit’s claim that harm would stem from the transfer. “It is speculative at best and rests entirely on hypothetical future actions of third parties,” NTIA argued, adding that the plaintiffs couldn’t “identify a single specific and real harm that will befall them.”
The lawsuit argues that the transition would violate the Constitution by illegally transferring U.S. property. A report released this month from the nonpartisan Government Accountability Office disputed that argument.
“We did not identify any government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system,” the GAO said. “It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.”
NTIA Administrator Lawrence Strickling made a similar argument in front of a Senate subcommittee this month as Republican Sen. Ted Cruz (Texas) led the crusade to block the IANA transition. Strickling told the panel that nobody owns the internet.
Democrats in Congress have been supportive of the transition and fought off Republican efforts to block the transition in stopgap spending legislation.
Rep. Frank Pallone (N.J.), the top Democrat on the House Energy and Commerce Committee, called the lawsuit “frivolous” and said Cruz was getting “his cronies” to attempt to block the transition after he “failed to convince his colleagues” to do so.
“The conspiracy theories that Senator Cruz and the extreme right have cooked up have absolutely no basis in fact, and their efforts to delay this transition are simply playing into the hands of [Vladimir] Putin and others who want more control over the internet,” Pallone said Thursday in a statement.
Hawaii Sen. Brian Schatz, the top Democrat on the Senate Commerce Subcommittee on Communications, Technology, Innovation and the Internet, called the lawsuit “another cheap attempt by a fringe group to politicize the IANA transition.”
“Technology and foreign policy experts from across the political spectrum agree that any delay of this transition would only empower our enemies and undermine America’s commitment to keeping the internet open and free,” Schatz said in a Thursday statement.