As the end of September approaches, and the planned handover of ultimate responsibility for internet naming by the US Government, it has emerged that Congress is making preparations to take legal action to halt the transition.

House Resolution 853, introduced by Congressman Mike Kelly on the 8th September will authorise the Speaker of the House to initiate civil action (or intervene in an existing action)regard  “compliance of the executive branch with the provision of law prohibiting relinquishment of the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions.”

This development doesn’t make certain that there will be legal action against the Department of Congress, but it makes it more likely.

We will find out between now and the end of the month if this is just sabre-rattling or if the long-brewing (principally Republican) objections to the ICANN transition will boil over into an out-and-out fight between the legislative and executive branches, in the sunset weeks of the Obama administration.

The full text of the Resolution may be found at :-

https://www.congress.gov/bill/114th-congress/house-resolution/853/text

Republican senators, including former Presidential hopeful Ted Cruz, just upped the ante in their bid to stall or prevent the Obama administration’s plan to remove ultimate US Government oversight of ICANN.

In another letter to Assistant Secretary Larry Strickling they allege that the US Government broke the law when it gave a contract to the Berkman Center (sic) for the evaluation of the transition plan.

Cruz and several other Senators write: ‘We believe that NTIA has violated that prohibition by funding projects whose only conceivable purpose is to facilitate the transition . . . ‘

Federal law prevents NTIA spending money on the transition under a rider in the appropriation that funds the Department of Commerce and NTIA.

Strickling has become a not unfamiliar face at ICANN meetings; another meeting is due to take place in Helsinki next week.

It’s arguable that the routine travel expenses of NTIA employees to such meetings come out of general funds, and in pursuance of NTIA’s general oversight duties.

It’s much harder to argue that a sole-source contract, to an external organisation whose whole brief is to assess the transition proposal, is expenditure that’s unrelated to the transition . . .

The full letter is here and Cruz’s commentary can be found here.

It will be interesting to see what comes of this complaint. It probably doesn’t matter whether NTIA broke the law or not here.

What matters is, that if so, what Rafael (who is receiving up-to-date, and accurate briefings on the transition) will do about it, other than write aggrieved letters, no matter how eminent the signatories. So far, that’s not much. But of course, he’s been somewhat distracted by a different project until recently.

One thing I’ve learned about dealing with ICANN  senior staff over nearly 20 years, is that they have an unshakeable belief in their correctness of whatever decisions they are involved in, and simply motor on, irrespective of any expressed concerns.

It remains to be seen whether Assistant Secretary Strickling (who is due to leave office at the end of the Obama administration) takes a similar approach.

The following is my submission during the Public Comment phase of the IANA Transition Proposal

The IANA Transition Proposal is a proposal to transfer existing apparent residual powers currently exercised by the United States Government in respect of the important Internet Assigned Numbers
Authority (IANA) function; day-to-day operations being carried out by ICANN under a contract awarded to it by the Federal Government.

It is notable and welcome that the Proposal appears to recognise, to a large extent, the need for the Corporation to have real and enforceable accountability to those whom the Corporation, in the future, will regulate, or have significant economic effects upon by virtue of the IANA role.

As the business goal of the Corporation is to “co-ordinate at the overall level the Internet’s system of unique names and numbers”, it can clearly be seen that this means ICANN must needs find ways to be held accountable to the whole world: that is to say, business, civil society and public authorities world-wide.

The Proposal contains many interesting features, ostensibly designed to achieve this goal. They may (or may not) do so to the needed extent. Others equally qualified to comment have already, and will, provide input on these specific features.

Accordingly I choose to focus this, my formal submission on the Proposal, to a more fundamental question, which I submit, is required to be answered before transition may proceed.

That question can be summarised as follows: ”Whence derive the powers?”.  More specifically, it is submitted that as a pre-requisite of transition, it must be necessary to understand with complete clarity the following:

1.  the legal basis for the existing role of the agencies of the United States;
2. under what existing statutory powers or proposed legislation the proposed transfer of powers from the United States to a California non-profit corporation is to take place; and
3. precisely which powers are proposed to be transferred from the United States to the selected private sector body by virtue of the IANA transition.

It is axiomatic, and trite to say that the principle of the Rule of Law (not to mention the constitution of the US) demands a government of laws, not governance by men. Yet, it seems to this author, the Proposal curiously lacks the necessary fundamental background of the powers involved. It is submitted that it is only reasonable to expect that the Proposal should set this out with precision and clarity before delving into the technical mechanics of how a future ICANN, once removed from the benevolent oversight of the United States’ Department of Commerce, would operate.

To the writer, it appears to be envisaged in the Proposal, that post-transition the Corporation (ICANN) will have untrammelled powers to co-ordinate (that is to say: to regulate) the Internet’s unique system of names and numbers in accordance with ICANN policies and its world-view of the global interest.

It further appears that, post-transition, that the operator for-the-time-being of the IANA function (i.e. ICANN) is intended to have power (within ICANN’s mission and policies but without external oversight such as is currently exercised by the United States) to create, modify, and remove global and country-code top-level domains (gTLDs and ccTLDs).

As an entirely private sector corporation, it is hard to see where ICANN’s legal authority is intended to sit, post-transition. The power  to compel another individual or corporation to regulatory compliance has to be founded either in contract, alternatively in statutory or prerogative power.

Further, as any other non-profit corporation, ICANN is free to enter into any contracts that it wishes, it remains hard to see whence (in the absence of some form of a deed of gift by the United States under existing statutory powers of the US Federal government) ICANN could henceforth derive a legal authority over the root zone database, which, although there are some questions about its very nature, has been previously claimed belongs to the United States, and without whose affirmative sanction, permissions, additions, modification and removal of entries may not currently be made.

In the absence of the needed clarity on the matters set out above, I cannot and do not support the Proposal as is.

Accordingly it is submitted that no changes to the status quo should be made unless and until the abovementioned deficiency has been rectified.

In an interesting twist, the appeal in the victims of terrorism case (now known as Weinstein & others -v- Iran & others) appears to be on the point taking a detour, leaving Federal jurisdiction, and being heard at the Appeal Court level in D.C. (i.e. the DC equivalent of the state appeals court).

You will recall that at first instance, it was decided that it was not necessary for the Federal court to decide whether TLDs and IP address blocks were property, because, even if they were — and the Court seemed to give a strong hint that they might be — they wouldn’t be the sort of property that could be garnished/attached.

The Plaintiffs appealed this. And in an interesting, although not unusual, development, they have petitioned the court to have part of the case decided not by the United States’ Court of Appeals but by the District of Columbia appeals court.

The way this seems to work, is a bit like when an English court, upon realising that its decision in a case before it depends on the interpretation of EU law, decides to refer the question to the ECJ in Luxembourg.

So here, the appellants have asked the Courts to answer the following question: ‘Whether D.C. CODE § 16-544, which provides that a judgment creditor may attach the “goods, chattels, and credits” of the judgment debtor, permits or might permit (dependent on what is revealed in discovery) ajudgment creditor to attach top level domain names and IP addresses of its judgment debtor?’

ICANN opposed this, but apparently lost the most recent skirmish: on 6th August, the Federal court stated: ‘Upon consideration of the motion to certify a question of law to the District of Columbia Court of Appeals, the opposition thereto, and the reply, it is ORDERED that the motion be referred to the merits panel to which this appeal is assigned.’

What this appears to mean is that the three judges of the Appeal Court that are assigned will now consider the application that ICANN wanted dismissed, namely whether the DC courts should be asked for a definitive interpretation of the statute (16-544).

It seems very likely that they will agree; and then at that point (some time in October) the case will head off to the DC Appeals Court.

The appellants have now filed a full brief, and it’s extremely interesting. There are a number of arguments in it which I will look at more closely in the coming days.

But the most powerful argument is simply this:

“Might the DC statute mean that TLDs and IP addresses could be attached?” That is a low hurdle to jump over, and it seems that the appellants ought to be able to leap it with ease.

It seems that the Federal Court doesn’t have to decide whether even whether it’s more likely than not. It has to decide simply whether there is a possibility.

And if there is a possibility the statute means what the Appellants say it does, then the obvious and necessary course of action is to obtain a definitive ruling on that.

And the correct way to get a ruling on D.C law is to ask a D.C. court.

As ICANN attempts to persuade the world that it deserves to be cut loose  from the apron-strings of the United States’ government, it is perhaps appropriate to review whether it is fulfilling the requirements of its founding community, never mind going forward.

The ICANN by-laws state, in Section 1 of Bylaw 3 that:

The Corporation and its subordinate entities shall operate to t’he maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.

Now this is pretty unambiguous.  In the first few ICANN meetings this meant that anyone could participate in the work of ICANN. You just turned up, registered (at no cost), attend and speak the sessions that interested you.

The Government Advisory Committee was a special case — it was formed specifically outside of ICANN, so it is not bound by the bylaws, and membership is restricted to accredited representatives of governments and multi-national organisations.

GAC meetings were originally held entirely behind closed doors, leading to all kinds of speculations. But over the years, the GAC began to feel more and more comfortable — holding joint meetings with other constutiencies and become more transparent. And we learned that, far from devil-worship, the GAC were doing extremely useful work that quite often had a lot in common with the ccTLD community.

Unfortunately, ICANN itself seemed to be going the other way.

In recent years, the perception is that more and more meetings were being held behind closed doors. You only have to look at the proliferation of the ‘CLOSED’ tags on the schedule.

And many of these ‘closed meetings’ are unnecessarily so.

I’ve been in a number of meetings when literally none of the participant knew why it had been scheduled behind closed doors.

It’s fairly self-eviden that if there’s a meeting of the members of a particular Council, or Working Group, that the participants in that group are the only people you’d expect to be debating, but there’s no reason why the general public can’t attend, and follow the discussions.

Transparency demands it, in fact.

The only time a meeting needs to resolve to close its doors, is if, for example it is discussing staff salaries, appointments, or reviewing privileged legal advice.

It was that dangerous radical, Margaret Thatcher, who in 1962, in a Private Members Bill, brought transparency to English local government.

Given the binding nature of the by-law that requires the ‘maximum feasible’ transparency, ICANN should not be doing worse.

In an earlier article I wrote about the court case of Ben Haim (& others) -v- Iran (& others) where the successful Claimants (Plaintiffs) were attempting to attach the Iranian, Syrian and (just for good measure) North Korean country code domain names (.IR, .SY and .KP) and wanted ICANN to hand them over, and took it to court to force it.

A DC court rebuffed the attempt stating that while top-level domains might be property (like any other domain name) they weren’t the sort of property that could be garnished.

Well, as I write this in the aftermath of the Sony hack, and what seem to be countermeasures taking North Korean off the Internet entirely, details are slowly emerging that (not entirely unexpectedly, given their historic persistence) the Claimants, or at least one of them, has launched an appeal.

What is mildly interesting is that it’s just one of the Claimants (lead Plaintiff Seth Ben Haim, and just one of the Defendants (Iran). All the Court filing says is, in essence “I appeal”.

You don’t have to be legally qualified to work out that this is a placeholder, designed to ‘stop the clock’. It also allows the Plaintiffs a breathing space so they can work out whether Washington, DC is the best forum to haul ICANN into court.

Even if, as Judge Landreth clearly foreshadows, (cc)TLDs are property, if .COM names can’t be attached in DC, then the Claimant’s may still have some difficulty with attaching TLDs (which after all, are just dotless domain names).

It always puzzled me anyway that this lawsuit was in DC. After all, ICANN is a California corporation, and the California district courts saw the first lawsuit over TLDs back in November of 1999.

Still, no doubt the Federal Appeal Court in DC is as good a place as any.