Realspace Sovereigns in Cyberspace: Problems with the Anticybersquatting Consumer Protection Act

This Article seeks to fill a critical gap in the current literature relating to the international ordering of cyberspace: the link between jurisdictional assertions by realspace sovereigns and their effects on the global effort to administer the Internet. We analyze the United States’ response to disputes over domain names, the Anticybersquatting Consumer Protection Act (“ACPA”), which permits a trademark owner to seek cancellation or transfer of the domain name by proceeding in rem against the domain name itself, thereby expanding the scope of the ACPA to encompass disputes with little direct connection to the United States. Congress appears to have developed 15 U.S.C. § 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. This Article argues that 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. The ACPA is notable for its aggressive approach to jurisdiction, and its expansive view of jurisdiction reveals the extent to which realspace sovereigns have a critical, and yet overlooked, role in the continued viability of a global unsegmented domain name system. By mapping the logical control over the domain name 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, either under the recognized principles of prescriptive jurisdiction in international law or as a de facto result of the geographic facts of the domain name system. We contend that the ACPA exemplifies uncoordinated actions that are likely to result in segmentation of the domain name system and thus a decline in social welfare. † Assistant Professors University of Pennsylvania Law School. We thank Stuart Benjamin, Paul Berman, Stephen Burbank, Dan Burk, Michael Froomkin, Edward Hartnett, Geoffrey Hazard, Mark Lemley, Curtis Reitz and participants at the 29 Research Conference on Communication, Information and Internet Policy. Remaining mistakes are our own. BERKELEY TECHNOLOGY LAW JOURNAL