Volume 36 Number 3 -- Spring 2003

TABLE OF CONTENTS

SYMPOSIUM

ICANN GOVERNANCE

ICANN 2.0: MEET THE NEW BOSS

by A. Michael Froomkin

In this Introduction, Professor A. Michael Froomkin reviews each of the contributions made to the ICANN Symposium in light of his own wealth of knowledge and personal experience in the development of ICANN. Professor Froomkin discusses the history of ICANN and efforts at reform, as well as international considerations in ICANN’s development, and the theoretical relationship between the legal and technological components.

FROM SELF-GOVERNANCE TO PUBLIC-PRIVATE PARTNERSHIP: THE CHANGING ROLE OF GOVERNMENTS IN THE MANAGEMENT OF THE INTERNET’S CORE RESOURCES

by Wolfgang Kleinwæchter

When ICANN was launched in 1998, it was celebrated as a global test for self-governance of the Internet. Instead of control by governments or the United Nations, the developers, providers, and users of Internet services would manage the Internet´s core resources. Five years later, spurred by concerns such as terrorism and cybercrime, the concept of Internet self-governance has been supplanted by an increased role for governments in form of a public-private partnership. ICANN's limited role for governments has been abandoned as governments now claim national sovereignty over various aspects of the management of the Internet. While ICANN remains a private corporation, governments can now send a non-voting liaison to ICANN's Board of Directors. Governments can also request consultations and explanations if the Board rejects a recommendation from ICANN's Governmental Advisory Committee.

A COMMENTARY ON THE ICANN “BLUEPRINT” FOR EVOLUTION AND REFORM

by David R. Johnson, David Post, and Susan P. Crawford

In this Article, David R. Johnson, David Post, and Susan P. Crawford argue that consensus policy-making is central to ICANN’s legitimacy and criticize the ICANN Board’s recent departure from a consensus requirement in its policy-making process. In October 2002, the Board adopted new bylaws that allow the mandatory imposition of global policy rules on registries and registrars under contract with ICANN. Although the existing contracts require documented consensus as a condition for imposing mandatory policy, ICANN has not yet announced how it intends to deal with this problem. The authors stress that because ICANN was not established by the United States or any other government, its authority to enforce its rules derives solely from these contracts, and more accurately, from the consensus decision-making model they embrace. Without such consensus decision-making, the authors fear for ICANN’s future in an increasingly litigious world.

ICANN AND THE CONCEPT OF DEMOCRATIC DEFICIT

by Dan Hunter

In this Article, Professor Dan Hunter examines why ICANN’s attempts to be democratic have failed. The typical explanation is that ICANN fails to meet its democratic obligations. Hunter argues instead that the problem is with our understanding of “democracy.” Democracy is an empty concept that fails to describe few of our political commitments. This Article explores features of democracy and ICANN, explaining why the online world exposes limitations in implications of democracy such as the nature of the demos, the idea of constituencies, direct democracy, and the like. If the concept of “democratic deficit” is so ill-suited to the online world, then we need to consider whether it is appropriate to berate ICANN for its allegedly undemocratic actions.

ABOUT A DIFFERENT KIND OF WATER: AN ATTEMPT AT DESCRIBING AND UNDERSTANDING SOME ELEMENTS OF THE EUROPEAN UNION APPROACH TO ICANN

by Herbert Burkert

This Article outlines the coming of age of a European Union Internet governance policy and its activities in setting up a ".EU" registry. A recurring leitmotif in these policies is the search for an adequate regime for a fundamental resource of global communications, which is still under the influence -- if not direct control -- of a single country. It is suggested that an analogy which has been developed in Public International Law with regard to shared resources (for example, water) might be helpful, not only in understanding past European Union policies, but also in guiding future policies to transform ICANN into a more traditional, or at least a more familiar structure. However, the ICANN context contains some elements which might make the outcome of such a Public International Law-oriented approach less predictable.

GOVERNANCE IN NAMESPACES

by Stefan Bechtold

The creation of the ICANN made the regulation of the Domain Name System (DNS) a central topic in Internet law and policy discussions. Critics argue that ICANN uses its technical control over the DNS as undue leverage for policy and legal control over the DNS itself and DNS-dependent activities. Such problems are not unique to the DNS. Rather, the DNS discussions are an example of the more abstract governance problems that occur in a set of technologies known as “namespaces.” Namespaces are an overlooked facet of governance in real space and cyberspace. In this Article, Stefan Bechtold develops a general theory of the governance of namespaces. Designing namespaces and exercising control over them is not merely a technical matter. Rather, the technical control over a namespace creates levers for the intrusion of politics, policy, and regulation. The Article provides several dimensions along which namespaces can be analyzed and explains how namespaces protect social values, and how they allocate knowledge, control, and responsibility. The taxonomic structure developed in this Article can be useful to legal and policy debates about the implications of namespaces. It can also be helpful to designers of namespaces who consider the legal and policy consequences of their actions.

COMMENTS

MATTEL, INC. V. MCA RECORDS, INC.: LET’S PARTY IN BARBIE’S WORLD -- EXPANDING THE FIRST AMENDMENT RIGHT TO MUSICAL PARODY OF CULTURAL ICONS

by Tamar Buchakjian

In this Comment, Tamar Buchakjian analyzes the Ninth Circuit decision in Mattel, Inc. v. MCA Records, Inc. -- a case which could have far-reaching effects on the First Amendment rights of parodists of trademark-protected subjects. Ms. Buchakjian agrees with the Ninth Circuit’s ruling that Aqua’s song, Barbie Girl, constitutes fair use of the “Barbie” mark and offers a compelling argument for the protection of parodists engaging in critical artistic expression of trademark-protected subjects reaching the status of cultural icons.

SZMAJ V. AT&T -- BAD NEWS FOR BOOK WORMS, JUDGES, AND LITIGANTS

by Kirsten E. Miller

In Szmaj v. American Telephone and Telegraph Company, the Seventh Circuit denied relief under Title I of the ADA to a plaintiff who had not satisfied the statute’s “major life activity” element. The court reasoned the “ability to read all day long” was not a major life activity because we do not live in “a society of bookworms.” The court should have instead analyzed whether reading (without the “all day long” restriction) qualified as a major life activity. This Comment examines the effect of the court’s failure to analyze reading as a major life activity and suggests a structured method of analysis, tracking the language of the statute, to provide lower courts guidance while still screening out unmeritorious plaintiffs.

ARTIFICIAL INSEMINATION BEHIND BARS: THE BOUNDARIES OF DUE PROCESS

by Lisa Walgenbach

On May 23, 2002 in Gerber v. Hickman, the en banc court for the Ninth Circuit established that the fundamental right to procreate is inconsistent with incarceration. This Comment evaluates the court’s decision, particularly criticizing its reasoning and application of a two part test to determine that prisoners may not participate in artificial insemination. The Comment rejects the two part test and suggests that the correct analysis for determining whether a fundamental right survives incarceration is the reasonable relationship test articulated in Turner v. Safley.