The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Those of you who are interested in Internet governance matters might want to have a look at a paper I recently published (as the initial contribution to IP Justice's "Internet Governance and Online Freedom Publication Series") on "Internet Infrastructure and IP Censorship."
In the paper, I describe (via a few recent examples) what I call "governance-by-infrastructure"—the use of control over access to critical portions of the Internet's technical infrastructure (such as the Internet's domain name system, or "DNS") as a means to enforce private and public law. And I try to outline some of the reasons why these schemes should make us very nervous and some core concerns—about Internet neutrality, legitimacy and institutional competence, due process, free expression and harm to third parties—that these schemes inevitably raise.
Questions about governance-by-infrastructure are at the heart of the difficult issues surrounding the "IANA Transition"—the U.S. government's decision to relinquish its oversight over one of the core infrastructure providers, the Internet Corporation for Assigned Names and Numbers ("ICANN")—and we'll be seeing a great deal more of it in the future:
These infrastructure-based systems are efficient in ways that the ordinary conventional mechanisms of international law cannot hope to match: fully automated judgment execution machines that can operate, virtually instantaneously, on anyone in any corner of the planet. They derive a great deal of their power from their ability to solve three of the most challenging problems surrounding law enforcement on a largely borderless medium like the Internet: (1) the problem of choice of law (i.e., determining whose substantive rules apply to conflicts involving persons located in different countries), (2) the problem of judgment enforcement (i.e., obtaining enforcement of a legal judgment issued in one jurisdiction against a wrongdoer located in a different jurisdiction), and (3) the problem of scale (i.e., functioning effectively across a medium that is, as James Grimmelmann once put it, "sublimely large,"and one that continues to expand in size at an exponential rate). It is entirely predictable—indeed, virtually inevitable—that they will be pressed into service under many new guises and in many new implementations in the years to come.
In any event, do take a look if you're so inclined.