A Federal Judge Just Let Obama Give Away The Internet

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Kevin Daley Supreme Court correspondent
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A federal judge in Texas approved President Barack Obama’s plan to cede control of the internet to an independent nonprofit, siding with the administration against four state attorneys general who sought to block the move.

The ruling ensured the U.S. government would surrender control of key internet functions to International Corporation for Assigned Names and Numbers (ICANN), the organization which manages, among other things, internet domain names and communications protocols. The transfer took place Saturday.

Texas Attorney General Ken Paxton, joined by Nevada, Arizona, and Oklahoma attorneys general, brought a lawsuit late Wednesday to stop the plan. The states argued that the internet, which was created by and for federal defense agencies, is U.S. government property, and cannot be given away without the consent of Congress. They further argued that ICANN could compromise the integrity of their own websites.

The AGs argued that, hypothetically, ICANN could terminate use of “.gov” or “.mil” domain names and imperil their ability to communicate with their citizens.

They also made a First Amendment argument, asserting that foreign powers could theoretically censor American citizens on the web. Obama’s plan also surrenders control of the root zone file, or the “address book” of the internet. A foreign power which aggressively asserts control over the file could restrict internet access and the spectrum of available websites. In their brief, the AGs wrote:

Through its role in creating and regulating the Internet, the U.S. Government has established a designated forum through which its citizens and states alike may make their voice heard. Plaintiffs seek to not only protect their interests, but as parens patriae, also seek to protect the interests of their citizens to speak freely on the Internet.

The states also made an Administrative Procedure Act (APA) claim, asserting that the National Telecommunications and Information Administration improperly followed the notice and comment phase of APA rulemaking. (RELATED: Obama Admin Wants To Surrender US Control Over Internet To Global Bureaucracy)

“Trusting authoritarian regimes to ensure the continued freedom of the internet is lunacy,” the Texas attorney general said in a statement. “The president does not have the authority to simply give away America’s pioneering role in ensuring that the internet remains a place where free expression can flourish.”

U.S. District Judge George Hanks quickly dismissed the claim. Government lawyers argued the states had no standing to sue, since they could not demonstrate a tangible injury they had suffered because of the move.

Hanks, an Obama-appointee, was nominated to the bench with the approval of Texas Republican Sens. John Cornyn and Ted Cruz. Cruz has been a vocal opponent of the plan to cede new functions to ICANN.

“This transition was envisioned 18 years ago, yet it was the tireless work of the global Internet community, which drafted the final proposal, that made this a reality,” ICANN Board Chair Stephen Crocker said Saturday after the transfer took place. “This community validated the multistakeholder model of Internet governance. It has shown that a governance model defined by the inclusion of all voices, including business, academics, technical experts, civil society, governments and many others is the best way to assure that the Internet of tomorrow remains as free, open and accessible as the Internet of today.”

The state AGs may still appeal the ruling to the 5th U.S. Circuit Court of Appeals.

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