© 1999 Jonathan Zittrain.

Executive Director, Berkman Center for Internet & Society and Lecturer on Law, Harvard Law School. I thank Catherine Manley, Diane Cabell, and Benjamin Edelman for helping me prepare this work, and Molly Shaffer van Houweling for valuable insights.

1. Marsh v. Alabama, 326 U.S. 501, 502-03 (1946).

2. See generally LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).

3. For a technical explanation of the domain name system, see Jon Postel, Information Science Institute, Domain Name System Structure and Delegation, Request for Comments 1591 (visited Nov. 22, 1999) <http://info.internet.isi.edu/in-notes/rfc/files/rfc1591.txt>; see also Milton Mueller, Technology and Institutional Innovation: Internet Domain Names (May 28-29, 1999) (unpublished manuscript, available from the author at <mueller@syr.edu>).

4. See Thomas v. Network Solutions, Inc., 176 F.3d 500, 504 (D.C. Cir. 1999); See also Postel, supra note 3.

5. For a discussion of <.com>, see Postel, supra note .

6. See David Schepp, Network NSI in Tussle Over Nasty Words in Domain Names, NEWSBYTE NEWS (May 14, 1999), available at 1999 WL 512913; Joel Michael Schwarz, The Internet Gambling Fallacy Craps Out, 14 BERKELEY TECH. L.J. 1021, 1052-1058 (1999) (suggesting that removal of domain name records would be an effective way to prevent access to Internet gambling websites).

7. Indeed, the Motion Picture Association of America has gone on record stating that it would like to see a mechanism by which websites with copyright-infringing content could have their domain names revoked. See Berkman Center for Internet & Society, Scribe's Notes XI Emerging Privacy Issues (Oct. 31, 1999) (visited Nov. 14, 1999) <http://cyber.law.harvard.edu/icann/la/archive/scribe-103199.html> (summarizing comments by Ted Shapiro, Deputy Legal Counsel, Motion Picture Association (Brussels) at ICANN and the Public Interest: Pressing Issues).

8. The Internet originated as a defense project under the guidance of the Defense Advanced Research Projects Agency (DARPA). This early network, called ARPANET, consisted of four nodes located at UCLA, Stanford, UCSB and the University of Utah. See Improvement of Technical Management of Internet Names and Addresses, 63 Fed. Reg. 8826 (1998) [hereinafter The Green Paper].

9. See Request for Comments on the Registration and Administration of Internet Domain Names, 62 Fed. Reg. 35,896 (1997).

10. See ICANN, Status Report to the Department of Commerce (June 15, 1999) <http://www.icann.org/general/statusreport-15june99.htm>.

11. See Marsh v. Alabama, 326 U.S. 501, 507 (1946).

12. See RealNames Corp., RealNames Homepage (visited Nov. 24, 1999) <http://www.realnames.com>.

13. See The United Postal Service, Comments in Response to NTIA Request for Public Comments (RFC) on the Enhancement of the .us Domain Space, Sect. V (Oct. 2, 1998), available at <http://www.ntia.doc.gov/ntiahome/domainname/Campbell.htm>.

14. Although its functions are now largely subsumed within ICANN, a website still exists for IANA at <www.iana.org>.

15. That day has not yet arrived.

16. Under a contract from DARPA. See The Green Paper, supra note .

17. See the RFC Directory maintained by the IETF Secretariat at <www.ietf.org/rfc.html>.

18. The RFCs included a "copyleft"-like license intended to copyright some IETF materials (by the Internet Society, since IETF does not legally exist) for the purpose of ensuring that the standards are not proprietized. See S. Bradner, Information Science Institute, The Internet Standards Process-Revision 3, Request for Comments 2026, (Oct. 1996), available at <http://www.ietf.org/rfc/rfc2026.txt>.

19. See IETF, IETF Homepage (visited Nov. 16, 1999) <http://www.ietf.org>.

20. Contrary to its usual self-imposed technical limits to discussion, the IETF is currently debating whether to build wiretapping standards analogous to those of CALEA (Communications Assistance for Law Enforcement Act, 47 U.S.C. 1001 et seq.) into Internet Protocol packets. So far the prevailing opinion appears to be that doing so would amount to designing a security flaw into the system. See the Raven listserv located at <http://www.ietf.org/mailman/listinfo/raven>.

21. I don't mean to suggest that the law says that every trademark holder preemptively owns her own mark plus a <.com> or <.net> at the end of it.

22. Registration of domain names consists of associating a holder with a name, and inserting the holder's desired destination address into a table that helps converts these names to the ultimate IP numbers required to find a site on the Internet. See Lockheed Martin Corp. v. Network Solutions, Inc., No. 97-56734, 1999 WL 965618, at *2, (9th Cir. June 8, 1999).

23. Network Solutions, Inc., the major player in the domain name business, is currently valued by investors at over $5 billion. See detailed quote information at <http://www.cnetinvestor.com/quote-detail.asp?symbol=NSOL> (visited Nov. 29, 1999). See also Courtney Macavinta, NSI Beats Analysts' Expectations (Oct. 28, 1999) <http://news.cnet.com/news/0-1005-200-1422067.html>.

24. In 1999, the Department of Commerce granted NSI a four-year extension of a 1992 exclusive deal allowing them to administer registration of names under <.com>, <.net>, and <.org>. The rates NSI is to charge dropped from $35 per name per year to $9, and its registrations went from "retail" to "wholesale." See NSI, Change Coming in Domain Name Registration (visited Nov. 19, 1999) <http://www.networksolutions.com/internic/internic.html>. Under the 1999 ICANN agreement, many other companies will be permitted to share this responsibility. See infra note .

25. See Mueller, supra note .

26. The gTLD-MoU proposed the creation of seven new TLDs. See Establishment of a Memorandum of Understanding on the Generic Top Level Domain Name Space of the Internet Domain Name System (visited Nov. 22, 1999) <http://www.gtld-mou.org/gTLD-MoU.html> [hereinafter gTLD-MoU]; Mueller supra, note ; see also Heather Mewes, Memorandum of Understanding on the Generic Top-Level Domain Space of the Internet Domain Name System, 13 BERKELEY TECH L.J. 235 (1998).

27. The document itself was placed in the custody of the International Telecommunications Union as individuals and entities became "signatories."

28. The authoritative root file was in NSI's custody, though Postel (as IANA) claimed the right to make changes. See Mueller, supra note .

29. In a October 2, 1997 letter to NSI, NSF stated, "Network Solutions, Inc.-as administrator of the root zone-is not authorized to take direction from any entity other than the National Science Foundation with regard to the functions that Network Solutions, Inc. performs under the cooperative agreement." See Don Telage, The New Commercial Internet: Where Do We Go From Here? (visited Nov. 22, 1999) <http://netsol.com/policy/telage199803/tsld013.htm>.

30. See The Green Paper, supra note .

31. See Management of Internet Names and Addresses, 63 Fed. Reg. 31,741 (1998) [hereinafter The White Paper].

32. See id. at 31,749. NewCo was specifically asked to do the following:

(1) Set policy for and direct allocation of IP number blocks to regional Internet number registries;

(2) Oversee operation of the authoritative Internet root server system;

(3) Oversee policy for determining the circumstances under which new TLDs are added to the root system; and

(4) coordinate the assignment of other Internet technical parameters as needed to maintain universal connectivity on the Internet.

Id.

33. Any would-be registrar must be accredited by ICANN and sign an agreement to be governed by ICANN's policies. Thus, ICANN can effectively bar participation by those who refuse to acknowledge its rules. See ICANN, Registrar Accreditation Agreement (visited Nov. 23, 1999) <http://www.icann.org/registrars/ra-agreement-10nov99.htm>.

34. See ICANN, Approved Agreements among ICANN, the U.S. Department of Commerce, and Network Solutions, Inc. (visited Nov. 22, 1999) <www.icann.org/nsi/nsi-agreements.htm>.

35. As of November 19, 1999, thirteen companies were accredited as registrars and currently operational, thirty-seven were accredited, but not yet operational, and thirty-seven were awaiting final accreditation. See ICANN, List of Accredited and Accreditation-Qualified Registrars (visited Nov. 19, 1999) <http://www.icann.org/registrars/accredited-list.html>.

36. See 2 MAX WEBER, ECONOMY AND SOCIETY, 956 (1978).

37. See Esther Dyson, Prepared Testimony for the U.S. House of Representatives, Subcommittee on Oversight and Investigation, Interim Chair of the Board of Directors, (July 22, 1999) <www.icann.org/dyson-testimony-22july99.htm> (responding to House Subcommittee on Oversight and Investigation's questions regarding ICANN's formation, structure, and policies).

38. See The White Paper, supra note , at 31,748.

39. See ICANN, ICANN-NSI Registry Agreement (visited Nov. 22, 1999) <http://www.icann.org/nsi/nsi-registry-agreement-04nov99.htm>.

40. See id. The ICANN bylaws provide for three Supporting Organizations ("SOs") to "assist, review and develop recommendations on Internet policy and structure." See ICANN, Bylaws, art. 6 (amended and restated Oct. 29, 1999) <http://www.icann.org/general/bylaws.htm>. They are the Address Supporting Organization, the Domain Name Supporting Organization, and the Protocol Supporting Organization. Each may name three directors to the ICANN board. See id.; see also ICANN, Supporting Organizations (visited Nov. 22, 1999) <http://www.icann.org/support-orgs.htm>.

41. See ICANN-NSI Registry Agreement, supra note .

42. See Bylaws, supra note , at art. 5, sect. 4.

43. See Chris Morris et al., Is This the Man of the Century?: Forget Mandela, Einstein, Gandhi, and Mao, Here's Ataturk, THE GUARDIAN, Oct. 30, 1997, at 1.

44. ICANN's most direct form of accountability right now is to the U.S. government, whose memorandum of understanding phases in responsibilities slowly, and makes those responsibilities provisional for the duration of the MoU. See gTLD-MoU, supra note ; National Telecommunications and Information Administration, Memorandum of Understanding Between the U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers (visited Aug. 28, 1999) <http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm>. Another source of accountability, or control, is the Internet technical community, which has been allotted several seats on the ICANN board through its "supporting organizations," and which in any event could be sufficiently roused to make the current popular, authoritative root file a pariah. See Bylaws, supra note , at Art. 5.

45. See ICANN, Resolutions Approved by the Board (visited Nov. 23, 1999) <http://www.icann.org/santiago/santiago-resolutions.htm#anchor21816>; ICANN, At Large Membership and Elections (visited Nov. 23, 1999) <http://www.icann.org/at-large/at-large.htm>.

46. See Markle Foundation, Markle Foundation Commits More Than $1 Million To Improve Internet Governance, Including Initiatives to Make ICANN More Publicly Accountable (visited Nov. 23, 1999) <http://www.markle.org/news/Release.199911021044.1219.html>.

47. See Bylaws, supra note , at art. 6, sec. 2.

48. See id.

49. See id.

50. See id.

51. See ICANN, Preliminary Report, Annual Meeting of the ICANN Board (visited Nov. 23, 1999) <http://www.icann.org/minutes/prelim-report-4nov99.htm>; Bylaws, supra note 39, art. 3, sect. 4.

52. See ICANN, Principles for Independent Review, Final Report of the Advisory Committee on Independent Review (visited Nov. 30, 1999) <http://www.icann.org/santiago/triac-final-report.htm>.

53. ICANN's failure in the short term is much less likely now that agreements among ICANN, NSI, and the U.S. government are in place. See supra note and accompanying text.

54. The reasons given included a desire for more competition in domain name registration, the need for a "more robust" management structure, and the impropriety of the U.S. continuing to manage an increasingly commercial Internet. See The White Paper, supra note , at 31742.

55. See Press Communiqué of the Government Advisory Committee, August 24, 1999, Santiago, Chile (visited Nov. 28 1999) <http://www.noie.gov.au/docs/gacmtg3_communique.htm>.

56. Such an organization might be structured similarly to the International Telecommunications Union which studies technical, operating and tariff questions and adopts recommendations on them with a view to standardizing telecommunications on a worldwide basis and includes operation subdivisions not unlike the IETF. See ITU, ITU Homepage (visited Nov. 30, 1999) <http://www.itu.int/>.

57. The root server system is a set of thirteen file servers, which together contain authoritative databases listing all TLDs. Currently, NSI operates the "A" root server, which maintains the authoritative root database and replicates changes to the other root servers on a daily basis. Different organizations, including NSI, operate the other 12 root servers. The U.S. government plays a role in the operation of about half of the Internet's root servers. Universal name consistency on the Internet cannot be guaranteed without a set of authoritative and consistent roots. Without such consistency messages could not be routed with any certainty to the intended addresses.

The Green Paper, supra note 8, at 8828.

58. Several organizations have proposed alternative root systems. See, e.g., Open Root Server Convention, Inc., Open-RSC Homepage (visited Nov. 20, 1999) <http://www.open-rsc.org>.

59. See Henry H. Perritt, Jr., International Administrative Law for the Internet: Mechanisms of Accountability, 51 ADMIN. L. REV. 871 (1999); Teague I. Donahey, Terminal Railroad Revisited: Using the Essential Facilities Doctrine to Ensure Accessibility to Internet Software Standards, 25 AIPLA Q.J. 277, 293-300 (1997) (identifying economies of scale, network externalities, and intellectual property rights as creating barriers to entry in software markets); Thomas v. Network Solutions, Inc., 176 F.3d 500, 504 (D.C. Cir. 1999).

60. For a discussion of this debate, see David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165 (1999) (tracing the history of the private security industry and the challenges it creates for the judicial system); Steven Siegel, The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama, 6 WM. & MARY BILL RTS. J. 461 (1998) (considering the application of the Supreme Court's state-action theory to residential community associations).

61. The IETF debate about wiretapping and privacy issues may be viewed by subscribing to the Raven listserv at <http://www.ietf.org/mailman/listinfo/raven>.

62. See Lawrence Lessig, The Spam Wars, THE INDUSTRY STANDARD (Dec. 31, 1998) <http://www.thestandard.com/articles/display/0,1449,3006,00.html>; MAPS Realtime Blackhole List (visited Nov. 30, 1999) <http://maps.vix.com/rbl>.