Sovereignty and Property Rights: Conceptualizing the Relationship between ICANN, ccTLDs and National Governments by Milton Mueller & Farzaneh Badiei
Posted in: Research at 15/03/2015 20:57
Abstract: Can ccTLDs be considered property? Or are they sovereign rights? Or are they somehow both? In recent litigation involving the top level domain for Iran (.IR), plaintiffs sought to garnish the domain as a form of property that could be used to compensate victims of terrorist acts allegedly backed by the Iranian state. Similar cases seeking to garnish ccTLDs have affected Syria (.SY) and the Congo (.CG).
In the theory and practice of Internet governance, there is a tendency to resist recognizing ccTLDs as a property right. These arguments tend to view ccTLDs as trustee relationships and argue that recognizing private property rights will undermine the rights of the domain registrants within the ccTLDs. Some (but not all) court cases have found that second-level domains are not property, but services.
On the other hand, governments are keen on asserting sovereignty rights over ccTLDs. They claim that sovereigns should be the ultimate authority over delegation and public policy for ccTLDs. In countries like Iran with a long-term conflict with the US, sovereignty rights are thought to immunize them from confiscation by outsiders. Some sovereignty claims closely mirror property claims.
In physical space, sovereign states have recognized territories. Sovereignty results primarily from a state's ability to maintain a monopoly on the legitimate use of violence in that territory, but also from recognition of its sovereignty by other states. In cyberspace, the delegation of a domain name representing a country (e.g., .BR for Brazil, or .IN for India) involves an unusual three-party relationship between a government, a party that operates the domain (delegee) and ICANN. ICANN, as the global coordinator and policy maker for the domain name space, must delegate a country code or name to a specific operator - otherwise the domain simply does not exist on the Internet. And because the DNS root is a globally shared resource, its management involves more than the wishes of the sovereign state but also involves obligations to "the global Internet community." Yet, as a nonprofit under U.S. federal and California jurisdiction, ICANN's role seemingly subjects ccTLD delegees to civil law claims of the sort seen in the Iran and Congo cases.
What, then, is the best way to shape the relationship between ccTLD delegees, ICANN and the governmental authority referenced by a ccTLD string, and what role should sovereignty or property rights claims play? The scholarly literature has left these questions unsettled. It has studied mainly the relationship between states and ICANN, or between the state and the ccTLD delegee. Studies that consider the triangular relationship of ICANN, delegees and states have not applied both property and sovereignty theories. Either it has assumed that states have sovereignty rights over their ccTLDs, or it has not dealt with the applicability of the theories of sovereignty and property rights to this relationship.
This paper uses a law and economics framework to analyze the relationship between ccTLD delegation, theories of sovereignty and theories of property rights. While property is a private right and sovereignty is a public right, international relations theorists have argued that they have some commonalities. Both, for example, involve claims of exclusivity. Both are also invoked in allocating rights over international resources, such as rights over the sea and over space. By critically and systematically examining the consequences of applying sovereignty and property rights to ccTLDs, this paper attempts to provide practical insights into the best way to handle conflicting claims over ccTLD delegations.
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