Wrong turn in cyberspace: Using ICANN to route around the APA and the constitution

The Internet relies on an underlying centralized hierarchy built into the d omain name system (DNS) to control the routing for the vast majority of Int ernet traffic At its heart is a single data file, known as the "root." Cont rol of the root provides singular power in cyber-space. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concer ns that the United States could so dominate an Internet chokepoint, the U.S . Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit Calif ornia corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U.S. government's power over the DNS, and convinced oth er parties to recognize ICANN's authority. ICANN then took regulatory actio ns that the U.S. Department of Commerce was unable or unwilling to make its elf including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-p arty trademark holders. Professor Froomkin then argues that the use of ICANN to regulate in the ste ad of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He ar gues that DoC's use of ICANN to make rules either violates the APA's requir ement for notice and comment in rulemaking and judicial review, or it viola tes the Constitution's nondelegation doctrine. Professor Froomkin reviews p ossible alternatives to ICANN, and ultimately proposes a decentralized stru cture in which the namespace of the DNS is spread out over a transnational group of "policy partners" with DoC.