Internet-governance-by-infrastructure

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.