A perfect example of this point is the government’s recent hand-off of control of the management of the domain name system.¹ For some time the government had been thinking about how best to continue the governance or control of the domain name system. It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, and then to a private for-profit corporation, Network Solutions.

The contracts were due to lapse in 1998, however, and for a year the government thought in earnest about what it should do. In June 1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken away from government and placed with an organization outside its control. [.COM DOMAIN NAMES NOW OF COURSE CONTROLLED BY VERISIGN;  NEED TO ACCOUNT FOR ICANN, ACPA, UDRP...]

Think about the kinds of questions my Georgian friend might ask. A “nonprofit corporation devoted to the collective interest”? Isn’t that just what government is supposed to be? A board composed of representative stakeholders? Isn’t that what a Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way—there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest—that, to steal the opening line from Justice Marshall’s last Supreme Court opinion, power, not reason, is the currency of deliberative democracy.² We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. We must find a way to get over it.

We stand on the edge of an era that demands we make fundamental choices about what life in this space, and therefore life in real space, will be like. These choices will be made; there is no nature here to discover. And when they are made, the values we hold sacred will either influence our choices or be ignored. The values of free speech, privacy, due process, and equality define who we are. If there is no government to insist on these values, who will do it?

When government steps aside, it is not as if nothing takes its place. Paradise does not prevail. It’s not as if private interests have no interests, as if private interests don’t have ends they will then pursue. To push the antigovernment button is not to teleport us to Eden. When the interests of government are gone, other interests take their place. Do we know what those interests are? Are we so certain they are better?

If there are choices to be made, they will be made. The question is only by whom. If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made—by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively, and responsibly.

Footnotes

¹ This is the system that associates a name on the Internet (for example, “cyber.law.harvard.edu”) with an Internet protocol address (for example, 128.12.12.01). People register domain names, now primarily through a company called Network Solutions. Their name, if it is available, is then associated with a particular server. Edit Delete

² Payne v Tennessee, 501 US 808, 844 (1991) (Justice Thurgood Marshall dissenting). Edit Delete