Transcripts: The crunch courtroom showdown to halt ICANN's internet power grab

Analysis Last week, there was a lot of excitement surrounding the transition of the internet's critical functions from the US government to non-profit ICANN.

Just hours before the transition was scheduled to take place, district judge George C Hanks Jr ruled on a lawsuit brought by four states' attorneys general asking for an injunction to prevent it from going ahead. He refused, and the move went ahead at midnight, DC time, on September 30.

This week however, there have been a number of reports and rumors about how that transition could effectively be reversed.

In response, we have taken a look at the legal arguments put forward and the hearing's transcript to gauge whether that is a real risk or a florid fantasy.

The argument is that the judge ruled solely on whether the case had met the very high standard needed to impose an injunction.

The underlying case – it is argued – is still valid, and so it is possible to run it through the courts and simply demand that the US government reimpose its contract (since it was given away improperly), reinstating the previous status quo.

That argument has been most forcefully put forward by the president of advocacy group TechFreedom, Berin Szoka, who claims that the IANA contract at the heart of the discussion is government property and the government failed to follow the necessary process, including gaining explicit approval of Congress, to hand it over.

Szoka, the states' attorneys general and Senator Ted Cruz also argue that the transition breaks the First Amendment on freedom of speech.

Break it down

It is true that the judge did rule specifically only on the request for a temporary restraining order, because that was the order in front of him.

However, in both the judge's final judgment and in his hearing, he made clear that many of the other arguments put forward did not hold water. Moreover, and critically, the plaintiff's own lawyer argued that if the restraining order was not granted, then legally there was unlikely to be a case for a retroactive decision.

Brunn Roysden, acting for the states, described the transition of the IANA contract as "just like the case of a bulldozer about to demolish a historic, unique, important building." The harm, he said, was "imminent and irreparable."

Then, asked specifically by the judge why it was necessary to grant an injunction before the contract expired, he responded: "Your Honor, it's our understanding that it would have to be done before the contract expired."

He added: "There may be some argument that if it was done shortly after the contract expired, that it would still be effective, but we would not want to run the risk that ... Based on public statements from NTIA, it appears that the public understanding of the contract is, when it expires, the rights that NTIA holds under the contract are extinguished."

Roysden later made the argument that it might be possible to drag the US government back into the contract, but that it was unlikely: "We think there may be some argument to be made that we could try and get the Federal Government to step back in; but we think that for all intents and purposes it has relinquished these rights, and we would maybe have to go directly against ICANN ... So, no, for intents and purposes, the contractual rights that are the basis of this case expire tonight with respect to the IANA contract."

And that is the critical point.

First Amendment

The other arguments were also dismissed, far beyond the denial of an injunction. As to the First Amendment argument, the judge was wholly unpersuaded of its merits for one simple reason: it only applies to the US government.

"Doesn't the First Amendment prohibit our government from infringing on the free speech rights of our citizens?" noted the judge. "What you're arguing is it's not that the [US] government is going to do it; it's that other governments, if we don't act, will do it against our citizens. How does that implicate the First Amendment?"

The states' lawyer said in response that the "delegation of licensing authority" to ICANN would allow the organization "to restrict First Amendment rights by either granting or denying top-level domain privileges" or by taking unspecified "other steps" to "make life difficult for particular domains they don't like."

The judge rejected the argument a second time: "But as I said, doesn't the First Amendment protect our citizens from our government? What's the case law – because I can't find any – that says the First Amendment prevents other countries from infringing on the First Amendment rights of US citizens?"

The states' lawyer, Brunn Roysden, agreed that there was no First Amendment claim against a foreign government, but argued that because the US government had not imposed any free speech obligation on ICANN before it handed it over, that it was infringing the First Amendment.

Again, the judge said no, and used the lawyer's offered legal precedent of when fighter planes were moved outside a state to explain why. "This isn't like physically taking property outside the United States," he noted. He also said that there was no evidence of the theoretical harm that might occur.

In his final judgment he ruled: "The States ... provide only the statements and arguments of counsel – and hearsay from third parties – to speculate about the future results of possible changes and events in a complex phenomenon, and the role and influence of NTIA over this phenomenon."