(Page 2 of 34) - Technology, Contracts, and the Internet: Private Governance for Global Communications authored by Klein, Hans.

PART I: INTERNET REGULATION

One of the most persistent claims about the Internet has been its unregulability. In
cyberspace it is allegedly impossible to make enforceable rules about users’ online
activities. As a network of networks based on packet-switched communications
operating under the TCP/IP protocol, it has been understood that the Internet’s inner
workings render impossible central control, the identification of users, and, ultimately,
punishment for misbehavior. Furthermore, as a global communication system whose
functionality immediately connects individuals from around the world, the Internet’s
ubiquity allegedly creates an insurmountable thicket of institutional conflicts. With so
many governments’ jurisdictions overlapping in cyberspace, no one’s law is supreme.
Thus control – the ability to unilaterally influence user activities – and governance –
coherent rulemaking for cyberspace as a whole – have both been understood to be
impossible. The result -- often praised, sometimes cursed -- is an “electronic frontier” in
which great freedom and even lawlessness prevail.

For better or worse, this claim of unregulability is mistaken. The claim about insurmountable
technical barriers to control rests on an incomplete understanding of Internet technology. The
Internet consists of more than a network of networks based on packet switched communications.
It also includes the Domain Name System (DNS), which is a highly centralized addressing
system and which is essential to nearly all Internet communication. The DNS provides a central
point from which to control user behavior.

Likewise, the claim of insurmountable institutional barriers to governance rests on an incomplete
understanding of law and jurisdictions. True, the public laws made by governments clash in
cyberspace. However, private law – the law of contracts -- can operate across borders. Private
law provides a means by which to promulgate global regulation of Internet activities. An
arrangement in which every user signed a contract with a central private entity would give that
private entity the power of a global regulator. Since its early days the administrative subsystem
within the DNS has required every operator of an Internet identifier (domain name) to sign a
contract.

Realization of global regulation through the DNS is no longer hypothetical. In 1998 the
DNS was placed under the authority of a private corporation: ICANN, the Internet
Corporation for Assigned Names and Numbers. ICANN is a private, non-profit entity
whose official mandate includes the control of the DNS. Its decisions are subject to
review by the United States government, which must approve of major ICANN decisions
before they are implemented. Nonetheless, with its ability to control users and to
promulgate global, contract-based rules, ICANN realizes the capabilities of Internet
regulation.

I offer here a detailed analysis of how Internet governance is realized by ICANN. My purpose is
to render comprehensible the interrelationship between technology, administration, and
governance, explaining how a computer network addressing system makes regulation possible.
To do this I define regulation, control, and governance, and I analyze the Internet's domain name
system (DNS). Then I explain how the former are realized through the latter. I touch on, but do
not analyze in any great depth, the substance of the regulations promulgated to date and whether
they are good or bad