Internet governance: What if the sky really is falling?

|The Volokh Conspiracy |

There is nothing, I have observed, that makes readers' eyes glaze over quite like a discussion of "Internet governance." It is entirely understandable; there has been a fair bit of hand-waving and even hand-wringing, about Internet governance over the past couple of decades—I have been among the guilty on this—and nothing much ever actually happens; governance talk turns out to be just that—talk—while the Internet seems to purr along quite well from one day to the next, with no more "governance" than it seemed to have ten or twenty years ago, thank you very much.

But something truly ominous is brewing on the Internet governance front, something with the potential to affect every one of the billions of people who now use the Internet on a daily basis, and not for the better. It is, unfortunately, buried pretty deep in some dense technical, and the legal, weeds, but here is the story in a nutshell.

[For those looking for more detail on what is happening in this so-called "IANA Transition," Danielle Kehl and I have recently published a paper for the Open Technology Institute, available here, in which we flesh out the somewhat complicated background for this story.]

The US government is contemplating relinquishing the last remaining vestige of its control over a vital piece of the Internet's core technical infrastructure—the domain name system (DNS)—and, with it, the last vestige of its ability to exercise oversight over how that system evolves and is used in the future.

It is, for any number of reasons (which Danielle and I try to summarize) a very good idea; the US government's special position in the management of key Internet resources—oops, I almost said "Internet governance"!—no longer makes any sense, and there are many reasons to support a transition placing the control over these resources into the hands of the global Internet community.

But this transition could also go very badly. How? The power that comes from control over the DNS is substantial, and, like all power, it is subject to abuse. In the case of the DNS, abuse means leveraging control over the DNS into control over the content of Internet communications. What does that look like? Well, it looks like something I warned might be coming a few months ago (see here): using control over the DNS databases to hear, and to enforce via the DNS entries, claims about the distribution of unlawful content—content that infringes (or is alleged to infringe) copyright, say, or that violates consumer protection laws, or gambling laws, or anti-pornography laws . . .

Whoever controls the DNS—whether it's the Internet Corporation for Assigned Names and Numbers (ICANN) or anyone else—will, as we put it in the paper, "inevitably be subject to intense pressure, from many directions, public and private," to leverage its control over Internet technical infrastructure at one level of the protocol stack—the DNS—to enforce rules about message content at a higher level of the stack. It is a dreadful idea, for many reasons, not least of which is that an institution built for the purpose of managing the technical coordination tasks necessary for the continued smooth functioning of the DNS is unlikely—to put it mildly—to be well-designed for the purpose of making global copyright (or consumer protection, or fraud, or pornography, or trademark) policy.

So that means—or it should mean—that before we complete this transition to a global non-governmental institution for all DNS management functions, we need to be re-assured that safeguards are firmly in place to insure that something like this doesn't happen, that whoever is in charge of DNS policy-making sticks to its knitting.

Most unfortunately, the tea leaves seem to be pointing in precisely the opposite direction. The latest development: today the Chairman and Ranking Member of the Senate Judiciary Committee (Sens. Grassley and Leahy) have endorsed just this kind of role for ICANN:

we have heard from a number of stakeholders that domain name registrars are not meeting their contractual obligations with ICANN, and that ICANN itself routinely has failed to prioritize and enforce its agreements. Registrars and registries, like every legitimate business that operates in the Internet ecosystem, have a constructive role to play in curbing online infringement and counterfeiting. We urge you to facilitate conversations among rightsholders, registrars, registries, and ICANN to identify mutually agreeable best practices in this important space.

It sounds innocuous enough—'conversations' about "mutually agreeable best practices"—but it is very bad news. It is starting to look, to me, like a deal is being cooked up: one condition of handing over control of the DNS to ICANN will be its promise to set up a process to deal with copyright infringement claims through the DNS. Far from providing safeguards against this kind of mission creep, the US government may be conjuring it into existence. We will all regret that if it comes to pass.