Transcripts: The crunch courtroom showdown to halt ICANN's internet power grab 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 …
Yes, an appointee, whether or not they want to consciously admit to it, are beholden to the guy that put them there, and, admittedly, are of the same legal/political bent as the appointer. Plus, a Federal District Court is never the last stop in any legal question.
An appeal, and injunctive relief can be sought by the plaintiffs at the Circuit Court of Appeals, then, with everything returned to status quo, the Circuit in either in panel form or full-on enbanc, can rule on on the various aguements. The best argument the plaintiffs have is that the Executive, meaning the President, should have sought the advice and consent of Congress first as the "contract" could be considered as an international treaty, which requires the approval of the Senate, to abrogate. The other arguments do need to detailed more than the original complaint, but they can still be amended before the Circuit rules.
Failing at the Circuit level, for either plaintiffs or defendants, SCOTUS is the final arbiter. Technically, if the "contract" (a very dicey legal term to be used in this case) is found to be a "treaty", then SCOTUS, under Article 3 Section 2, as has been already determined by prior courts, is actually the court of "first hearing" (meaning, in terms of treaties, all lower courts can be bypassed and SCOTUS can hear the case directly, without having to drag it out in the inferior courts). Congress can, of itself, simply pass a law reaffirming the "contract" of ICANN, stopping any other authority to take control. Then the case would have to go through at least 2 circuits with opposing rulings in equity, then SCOTUS can take the case, but only if the "agreement" is called a "contract" and not a "treaty" (all three words have very specific meanings in in US legal parlance).
No matter how this turns out, the fight is long from over. The world may not like it, but American technology made the Internet possible, and therefore the country does have certain "property rights" to who or whom controls it. The last word has not been uttered and the "fat lady" is off stage.
"American" (that is US) technology also made the telephone possible, but that didn't mean that the global POTS network should have been run by the US government -- and it never was. Indeed, one US company, AT&T, dominated the landscape for almost 100 years, but in the end what made, and still makes, it possible for a telephone call placed in Kansas City to reach Hong Kong is the cooperation of private and government owned operators who have agreed to adhere to strict global technical standards and subscribe to detailed tariffs negotiated between those operators.
The Internet is an inter-network of networks, owned and operated by a multitude of different organizations across the globe.What makes it work is the same kind of cooperation that made the POTS work: agreement on global technical standards and subscription to detailed rate schedules negotiated between operators. Individuals and businesses who are not themselves operators of the routers, switches and other infrastructure components that bind together the Internet, which is most of us, obtain access through providers under the terms of private contracts they have with those providers.
The US does not, could not, "own" or "run" the Internet. As big as its government is, it simply lacks the resources, or the political will, to control the Internet in any meaningful way. ICANN, like IANA, are technical services that should be, need to be, politically, and commercially (a subject for a different time), neutral.
But politicians in the US are famously braggarts and many simply can't abide anything that looks like a cooperative effort, especially if it compromises their access to pay-to-play money from constituents who believe those politicians can tip the scale in their favor. Go through and look at press reports from the Depression and World War Two periods and you'll find a sea of critics who at every turn decried cooperation and joint action against the poverty inflicted on my country and, later, the threat that both the Nazis and Imperial Japan posed to our existence (of course there were also a legion of parties who went with the flow and then sought, sometimes successfully, to profiteer off the misery of millions).
Given the decline of the US and the rise of others like the members of the BRIC, I would argue that there could be no better time to separate the technical management of the Internet from the control of nation-states. If the world were to follow the advice of those four US state attorneys general and their backers then we would be faced, in maybe a very few years, with the prospect of one or more of those BRIC countries, whose economies will by then be ascendant over the US, staking claim to "ownership" of the Internet and probably prevailing. Better to set the precedent now of establishing a neutral, non-governmental, arbiter of technical standards than to try, and probably fail, later.
As far as its oversight of the DNS root is concerned, IANA only controls the Internet to the extent anyone else wants to be listed in its directory and others want to continue using it in preference to some alternative root. The root zone is a small file and anyone who wants to, and has the infrastructure ( a few powerful enough servers in secure hosting on different continents will do) can replicate and serve it to whoever wants to ask them for it. The last point is made slightly more complex with DNSSEC, but only to the extent of needing to patch operating systems to accept a different root zone provider trust certificate as valid.
Having a private "non profit" registered in California do this job seems a bit weird and corruption inducing, and so is FIFA. The alternative is the relative legitimacy (in relation to international law), glacial responsiveness and byzantine bureaucracy of the ITU which has similar oversight of the global dialup phone system.
... but only in the interests of American citizens, of course. So they are worried about the First Amendment worldwide, but have no issues if the basic rights of foreign citizens are violated by NSA or FBI.
They could have used the Universal Human Rights Declaration, maybe, but most of actual US politicians look wearing blinkers, and can't really look beyond their US-rooted noses. Also, UHRD may be a double-edged sword...
[C]ritically, 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."
The attorney had to argue "imminent and irreparable harm" as it's a requirement for the granting of an injunction like this. But he is free to now argue the exact opposite - i.e., that the court can order a retroactive invalidation - and these statements can't be used against him. It may seem odd but it's a function of how the US legal system works. Attorneys are advocates, they are expected to provide every remotely reasonable argument on behalf of their clients, even if the arguments are contradictory or mutually exclusive. It is the job of the judge (and jury to the extent applicable) to review each argument in isolation and determine which, if any, have merit.
But he is free to now argue the exact opposite ......
Attorneys are advocates, they are expected to provide every remotely reasonable argument on behalf of their clients, even if the arguments are contradictory or mutually exclusive.
And most U.S. Politicians started as attorneys.
Trump, is of course, allowed to reverse his opinion hourly or wholesale rewrite reality.
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