Yeshiva University Benjamin N. Cardozo School of Law
This Article is about the governance of the Internet naming system. The subject is fascinating, not simply because the naming system is an important system affecting the Internet, although it is; and not because the Internet is important, although it is. The subject is fascinating because it offers a rare opportunity to examine and learn from the evolution of an incoherent governance structure. The naming system is special in that it is the product of a new technology; it reflects the changes and pressures brought by the new technology, and involves the interests of government and private entities, domestic and international. And while this combination is complex and special, the players are known and their motivations are quite familiar: a quest for power and money, a professional pride and national patriotism, and deep commitments to various ideologies. Can we predict or even speculate with some certainty how this governance system will develop? Regardless of whether we can, what lessons can we learn from what we see? How should we approach the questions? How can we generalize our findings?
The governance of the naming system involves the actors in the system's infrastructure - the registries, registrars, governments, the Internet Service Providers, and the Internet Corporation for Assigned Names and Numbers ("ICANN"). The naming system is designed as a pyramid, with the one source root at the top.' This pyramid is operated by a number of entities.
The naming system presents many questions. Does ICANN's policy-making power matter; and if so, to whom? I do not deal with these issues, but I address them briefly because they constitute part of the context of my inquiry. ICANN's policy-making is an important matter. It coordinates some activities among the actors in the naming system infrastructure. It offers, mostly through others, some services for the actors in the infrastructure. It has authority to create new Top Level Domain Names in the United States under ".us," or otherwise. It has authority to create new country code Top Level Domain Names ("ccTLDs"), and to approve (or disapprove) the "delegation" of the operating power of top level domain names, including ccTLDs. It is involved in, and can affect, matters concerning conflicts between trademark holders and domain name holders. It is involved in determining whether a particular entity is an organization entitled to use ".org," or an educational institution entitled to use ".edu." ICANN may have the power to determine the use of domain names in languages other than English. And the list can be extended to the qualifications and the duties of registrars and registries that manage top-level domain names at different levels.2
ICANN's powers involve money. Every power that ICANN may exercise and every request that must be directed to it, can, and usually does, carry a price tag. ICANN can set charges for whatever services, permissions, consents, or requests for consents it entertains. To the extent that ICANN can define the scope of its powers and the price tags that it attaches to the exercise of its powers, it may indeed build a significant empire that involves the infrastructure of the Internet naming system and affects the operations of the Internet.
Governing by Negotiation: The Internet Naming System
Cardozo Journal of International and Comparative Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3197