Masters of the Domain

International Review of Law, Computers & Technology, Vol. 17, No. 3, November 2003, Leicester.

The Internet has always attracted libertarians and iconoclasts who found a freedom in cyberspace, which offered an anonymity and anarchy absent in the unwired world. Not surprisingly, regulating the Internet has long proved a hazardous endeavor. What little regulation exists is frequently criticized and its supporters "flamed" (or vilified by e-mail).

The Internet Corporation for Assigned Names and Numbers (ICANN) bears much of this anti-regulatory wrath. ICANN emerged in 1998 when the Clinton administration directed the U.S. Department of Commerce to privatize management of the domain name system, the database ensuring that Internet browsers call up the right information when someone enters a Web site address. In addition, ICANN manages disputes over domain names and determines whether .com and .org will be augmented by .biz, .travel, or even Chinese characters. These responsibilities may not seem momentous, but if any organization governs the Internet, it’s ICANN.

University of Oslo legal scholar Susan Schiavetta and Konstantinos Komaitis of the University of Strathclyde (in Glasgow, Scotland) describe and denounce ICANN in a recent issue of the International Review of Law, Computers & Technology. The authors dub ICANN a socially pernicious force that has "managed to initiate a great deal of control over the ‘inhabitants’ of cyberspace."

ICANN surely deserves some of this opprobrium, especially for failing to represent the international character of Web users. As the birthplace of the Internet, the United States dominates Net management, but placing ICANN outside the Department of Commerce was supposed to transform it into a truly international governing body. However, movement in this direction has been slow and halting, not least because ICANN has abandoned democracy: It recently scrapped the direct election of board members in favor of nominations by various supporting organizations.

ICANN’s actual menace to Internet freedom is less clear. Schiavetta and Komaitis point to three dangers ICANN supposedly poses, but it is difficult to get worked up about any of them. First, the authors condemn the mandatory arbitration provisions to which all domain name registrants must agree, saying that arbitrators are given too much latitude in decision-making. But these rules, written mainly by the World Intellectual Property Organization and administered by international organizations independent of ICANN, have streamlined the dispute resolution process and navigated such sticky disputes as, say, a Chilean company wresting a domain name from a cybersquatter in Chad. What national or international court could deal with that?

Second, Schiavetta and Komaitis argue that ICANN’s arbitrators in these dispute resolution procedures tend to side against individuals creating Web sites that criticize well-known corporate or commercial entities — what the authors call "dot-sucks" domain names. They have a point here. In one case, an arbitration panel ruled that the web site Dixons-online.com, which listed complaints against the British electronics chain Dixons, illegitimately used the store’s trademarked name, even though few people could possibly have confused the two sites. However, free speech is doing just fine in cyberspace, and people can criticize freely in other forums without infringing on trademarks. Forcing corporate critics to move their pugnacity to one of a million different Web sites is a far cry from muzzling them completely.

Finally, the authors criticize Whois.net, the database overseen by ICANN that reveals the entity behind every domain name (including personal names, phone numbers, and e-mail addresses). Schiavetta and Komaitis believe that this level of disclosure helps stalkers and spammers and violates privacy rights. But disclosure also helps law enforcement officials or journalists who want to learn who runs or owns a particular site, such as those sites peddling stolen credit card information. Given the difficulties of tracking fraud and crime online, if ICANN’s action is a sin, it certainly seems a pardonable one.

Indeed, much the same can be said about the other perceived threats of ICANN. Ultimately, Schiavetta and Komaitis’s warnings ring hollow: If these are the harshest possible critiques of ICANN, then the organization must be doing a good job.