Realspace Sovereigns in Cyberspace: The Case of Domain Names

In the era of the global Internet, realspace sovereigns face new problems relating to the scope and enforceability of their laws, many of which are intended to protect local individuals and commercial entities. How these traditional sovereigns respond to these challenges will have farreaching implications for the ordering of social and commercial behaviour online. In this piece, we take up the case of the domain name system as an example of challenges and solutions yet to come. We begin by critically analyzing the United States’ response to international disputes over domain names, the Anticybersquatting Consumer Protection Act (ACPA), which offers a number of potential remedies to U.S. trademark owners whose marks are registered as domain names by alleged cybersquatters. Most important for our purposes, 15 U.S.C. § 1125(d)(2) permits a trademark owner to seek cancellation or transfer of the domain name by proceeding in rem against the domain name itself, thereby purporting to expand the scope of the ACPA to encompass disputes with little direct connection with the United States. Congress appears to have developed § 1125(d)(2) based on a misunderstanding of the constitutional requirements for adjudicative jurisdiction in the U.S. courts; and early court decisions interpreting the provision have perpetuated the misunderstanding. In reality, there exist no cases of foreign cybersquatting (aside from certain cases involving anonymous registrants) as to which the in rem provision will be both applicable and constitutional. Thus, we conclude that the provision is notable mainly for its aggressive approach to jurisdiction. This assessment leads us to a broader consideration of the role of realspace sovereigns (especially the United States) in the international regulation of the domain names system. Turning to this issue, we find that realspace sovereigns have a critical (and yet overlooked) role in the continued viability of a global unsegmented domain names system. By mapping the logical control over the domain names system – the distributed hierarchy that is the basis of the system’s design – onto realspace territory, the potential for sovereign regulation of the system becomes apparent. Such regulation can either be supported by recognized principles of prescriptive jurisdiction in international law, or be the de facto result of the geographic facts of the domain names system. We argue that the regulatory significance of geography, and the essentially arbitrary nature of the present territorial locations of the key components of the domain name system, lead to incentives for realspace sovereigns to alter the geographic facts – primarily by establishing alternative root server systems. This in turn implies the future segmentation of the domain name system, and the resulting dramatic decrease in its value. Accordingly, we argue that realspace sovereigns (and especially the United States) have strong interests in avoiding segmentation, and thus must seek to coordinate the r e g u l a t i o n o f t h e s y s t e m .