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Technology, Contracts, and the Internet: Private Governance for Global Communications
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Technology, Contracts, and the Internet:
Private Governance for Global Communications
AbstractThe Internet has been widely understood to be unregulable: in cyberspace it is allegedly impossible to make enforceable rules about users’ online activities. This claim is based on two subsidiary claims. First, the Internet is allegedly uncontrollable. The design of the technology supposedly makes it impossible to monitor actions, trace them back to the people doing them, and punish them. Second, the Internet is allegedly ungovernable. As a global system the Internet falls under the jurisdiction of all national governments, and the resulting interjurisdictional conflicts make coherent regulation impossible. For better or worse, this claim of unregulability is mistaken. The Internet Corporation for Assigned Names and Numbers (ICANN) realizes both control and governance, thereby achieving Internet regulation. ICANN achieves control over users through its control of the domain name system (DNS). ICANN achieves governance through its use of private contract law, which can span political jurisdictions. ICANN has one major fault, however: it lacks legitimacy: ICANN’s decisions are not subjected to commonly accepted checks and balances, nor does it govern according to generally accepted principles. The power of the Internet’s emerging regulator is not grounded in principle.
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* * * DRAFT * * *
Technology, Contracts, and the Internet:
Private Governance for Global Communications
Abstract
The Internet has been widely understood to be unregulable: in cyberspace it is allegedly
impossible to make enforceable rules about users’ online activities. This claim is based
on two subsidiary claims. First, the Internet is allegedly uncontrollable. The design of
the technology supposedly makes it impossible to monitor actions, trace them back to the
people doing them, and punish them. Second, the Internet is allegedly ungovernable. As
a global system the Internet falls under the jurisdiction of all national governments, and
the resulting interjurisdictional conflicts make coherent regulation impossible. For better
or worse, this claim of unregulability is mistaken. The Internet Corporation for Assigned
Names and Numbers (ICANN) realizes both control and governance, thereby achieving
Internet regulation. ICANN achieves control over users through its control of the domain
name system (DNS). ICANN achieves governance through its use of private contract
law, which can span political jurisdictions. ICANN has one major fault, however: it
lacks legitimacy: ICANN’s decisions are not subjected to commonly accepted checks
and balances, nor does it govern according to generally accepted principles. The power
of the Internet’s emerging regulator is not grounded in principle.
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