Cyberspace's Constitutional Moment

David G. Post
The American Lawyer, November 1998, "Arguments"                                             Back to DPost home page

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Some time ago (See "Who Has Dominion Over Domain Names?," September, 1997) I suggested that the Internet was fast approaching a critical moment for its governance scheme -- Cyberspace's first "constitutional moment," to use Bruce Ackerman's phrase. The domain name system (DNS) -- the system whereby individual computers obtain the unique identifiers (microsoft.com, temple.edu, DOJ.gov, and the like) that enable them to enter cyberspace, to send and receive communications from other machines on the global network -- was in crisis. It was, and is; as I write this, attempts to restructure this system and thus to redefine the processes under which these passports into the global network are issued are well underway, and the results are, unfortunately, disturbing.

A brief review of the problem is in order. If, say, an email that I send to some address at "ibm.com," or the request that I send to access the home page at "www.xyz.com," are to reach their intended destinations, my Internet Service Provider must find the numbers -- known as the Internet Protocol (IP) addresses -- corresponding to each of those "domain names." There is, in fact, a series of databases that match all assigned domain names to IP addresses; this giant electronic directory is stored on a number of different machines scattered about the globe known as "rootservers." My ISP, then, merely needs to periodically check (and download) the contents of these directories from the appropriate rootservers in order to place the correct (numerical) address on the messages that I am directing out over the Internet.
 

It seems reasonable to suggest that if we are to have a single globally interconnected network, there must, ultimately, be a single source responsible for insuring the integrity of the data contained in these rootservers; in fact, I might quarrel with that assumption, but I will leave that for another day. If there is to be one source for this information, control over this rootserver database is, in a very real sense, a matter of (electronic) life and death, a kind of ultimate control over the Internet itself. If the entry for ibm.com is eliminated from the rootserver databases, ibm.com vanishes from cyberspace. If the person or entity controlling the rootservers determines that a $1,000 fee (or a certificate of good standing from the California Secretary of State, or a pledge to abide by the laws of Uzbekistan, or a promise not to transmit encrypted messages, or ...) is required to register a name-number combination and place it in these publicly-accessible databases, those who cannot or will not pay the fee, obtain the certificate, or make the required promises, are effectively banished from the global system.

Who wields this power, and what keeps them from exercising it arbitrarily and oppressively -- are questions of the deepest importance for the continued development of a vibrant Internet. In the beginning -- before the Internet became a Big Deal -- responsibility for operating this system and maintaining these databases fell to the Internet Assigned Number Authority (IANA), an imposing-sounding entity that, in reality, consisted of a small number of dedicated volunteers in southern California. As the Internet began its explosive growth, this system became unworkable; beginning in 1993, responsibility for maintaining the databases for the increasingly popular "generic top-level" domains -- *.com, *.net, *.org and the like -- was handed over, under a cooperative agreement funded by the National Science Foundation, to a private firm, Network Solutions, Inc. (NSI).
 

The government's contract with NSI, however, was due to expire in February of this year; after extending that contract through September, the government released, in June of this year, its long-awaited "Statement of Policy: Management of Internet Names and Addresses" -- the so-called "DNS White Paper" -- detailing its plans for the continuing operation of the DNS. The White Paper solicited proposals for a new, not-for-profit corporation formed by the "Internet stakeholders" themselves to which the government would transfer responsibility for administration of the DNS.
 

This is an exercise in a kind of constitution-making, the creation of a global governing entity with ultimate authority over this most extraordinary (and most valuable) global resource. But judged by constitutional standards, the plan that the government appears prepared to implement -- based upon a proposal submitted by IANA -- is deeply flawed.
 

The IANA proposal calls for the formation of a California non-profit corporation -- ICANN, the Internet Corporation for Assigned Names and Numbers. The goals and functions of the new corporation are lofty; it will operate "in an open and transparent manner and consistent with procedures designed to ensure fairness," policies regarding the domain name space will only be adopted after "providing a reasonable opportunity for [affected] parties to comment" on those policies, the corporation will not act "in competition with entities affected by the policies of the corporation," nor apply its policies "inequitably" nor subject any party for "disparate treatment unless justified by substantial and reasonable cause" or "apply any standard or policy in a manner that it knows will disproportionately and unjustifiably destroy a substantial property or contractual right of a particular party," and the like.

But if we know anything at all about constitutions, it is that the best substantive protections -- are of little avail without adequate procedures to determine the scope of those protections and to enforce them against those who would violate them. As James Madison pointed out (in Federalist 48), "mere demarcation on parchment of the constitutional limits of the several departments [of government] is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." Or, as a professor of mine once pointed out (less eloquently, perhaps, than Madison but no less correctly), the Soviet Union's constitutional protections for the freedom and well-being of its subjects were far-reaching, but they were largely meaningless precisely because the power to determine the meaning of those protections was placed in the hands of those most likely to be violating them.
 

Here the IANA draft is deeply troublesome. The new corporation's charter and by-laws provide, unsurprisingly, that it is to be controlled by its Board of Directors. No problem there -- except that the Board is left effectively unchecked in the exercise of its powers. "No man shall be judge in his own cause" -- another venerable constitutional principle, but the ICANN Board itself will determine the procedures for nominating and electing its members, the nature of the organizations that will have input into that process, the circumstances under which Board members may be removed from office (and, ultimately, the content of the charter and by-laws).
 

To be fair, the drafters of the NSI-IANA plan devoted a great deal of effort to constructing provisions to insure broad representation on the Board (although these, too, are subject to Board alteration). The corporation's by-laws specify, for example, that the Board must have diverse geographic representation (with no more than ½ of its members from any single "geographic region"), and that specified numbers of directors must come from particular organizations representative of different interests (regional Internet domain name registries, Internet technical consortia, etc.).
 

But American constitutional theory, at least, provides strong grounds for believing that representational principles are never sufficient for the purpose of just governance. The US Constitution itself was a response to the perceived failures of even the most representative of the post-Revolutionary State governments. Power does corrupt, and the power of even representative legislative assemblies must be held in check by some means other than the electoral check on representatives. Only by dividing and dispersing governing power among distinct institutions with distinct spheres of operation, and then "giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others" can "a gradual concentration of the several powers in the same department" [Madison again] be avoided. "Ambition must be made to check ambition." Without mechanisms whereby others possessing the will to check the Board's powers are authorized and granted the requisite means to do so, the ICANN Board, no matter how "representative" it may be, will succumb to the inevitable and inherent pressure to act not in the interests of the Internet as a whole but in its own self-interest (or in the interest of whomever ends up pulling its strings or paying its bills).
 

These mechanisms -- equivalent to our own set of constitutional checks and balances -- can be provided in many different ways; something like a truly independent judiciary would be a good start. The Internet may be fertile ground for experimentation with other forms of checks and balances derived from other constitutional traditions or newly constructed to fit the unique conditions of the global network. Failing to take any steps in this direction -- as the IANA draft has failed to do -- is the one truly perilous course.
 

You may think, perhaps, that I overstate the case; expecting this simple California non-profit corporation to uphold Madisonian constitutional standards is surely a bit overheated. But this is no ordinary corporation. It is the gatekeeper for cyberspace itself with the power to define the contours of cyberspatial existence world wide; it is not, I think, too much to ask that we impose the strictest possible safeguards on it to guarantee, as best we can, that it exercise its rather extraordinary powers justly and equitably.