PHOENIX — A federal judge on Friday rejected a last-minute bid by Arizona Attorney General Mark Brnovich to block the Department of Commerce from giving up its oversight of the organization that coordinates internet names and addresses.
In a brief order, U.S. District Court Judge George Hanks Jr. refused to issue the injunction that Brnovich sought. That paved the way for transfer of control of the International Corporation for Assigned Names and Numbers at midnight Friday to the organizations that use it.
In his pleadings, Brnovich argued that allowing the transfer to go through would harm First Amendment rights of Americans and create opportunities for hostile foreign governments to wreak havoc with the internet.
But Hanks sided with attorneys from the U.S. Department of Justice, who questioned whether the transition would result in real and “irreparable” harm, a legal requirement for an injunction.
In their filings, the federal attorneys called Brnovich’s fear of harm “speculative at best and rests entirely on hypothetical future actions of third parties.” And the government’s lawyers said the complaint Brnovich filed on behalf of himself and attorneys general from three other states “is full of ‘coulds’ and ‘mays,’ as they cannot identify a single specific and real harm that will befall them.”
There was also the question of whether the judge, sitting in Texas, actually had jurisdiction to hear the complaint regarding a federal contract.
It also didn’t help his argument that Brnovich did not file the lawsuit until late Wednesday night, asking Hanks to stop a transfer that has been set for months.
Even though Hanks’ refusal to issue an injunction means the transfer would take place on schedule, Brnovich may not be done.
“Our office will continue to explore our option for relief to unwind these improper acts by the Obama administration,” press aide Ryan Anderson said in a prepared statement.
A private organization, ICANN has operated for years under a contract with the federal government to coordinate what essentially is a phone book of unique numbers assigned to internet sites.
It also controls the “root zone file” of domains, essentially ways to get to specific sites by their name and suffix, like .com and .gov, rather than a number.
Attorneys for the government argued it has always been the intent to get the U.S. government out of the oversight business, citing comments by Bill Clinton in 1997 when he was president.
Brnovich, however, told Capitol Media Services he thought that, as the Oct. 1 transfer date approached, Congress would block the move. That did not happen.
Government lawyers called his fears “implausible.”More to the point, they said the effort misses the role the federal government plays, saying it has never had the legal or contractual right to control what ICANN does.
“Free expression flourishes online when governments do not act as gatekeepers,” they said.