In the annals of the Internet, few topics seem as boring, arcane and inscrutable as the domain name system. Yet, in Milton L. Mueller’s hands, the story of how the Net came to be administered is riveting, illuminating, depressing and enraging. In effortless, lucid prose Mueller documents and explains precisely how “Internet governance” has evolved from the enlightened despotism of a technological elite into a tool of special interests intent on protecting and expanding the control of intellectual property online.
It is a sad story, in the end, this “taming of the Net.” In “Ruling the Root,” Mueller, with all the precision and economy of a masterful prosecuting attorney, demolishes the techno-libertarian myth of the Internet as a new space for human interaction that is uncontrollable and inherently independent. Despite the widespread belief that the Net is so decentralized and distributed as to be able to elude governments and even nuclear devastation, there is a central point of control — the so-called “root.”
The root is not a single computer or set of computers, but rather, as Mueller puts it, “a cluster of functions” that have to do with the management of the Internet’s name and address system. The bedrock of the Internet is a set of “name-serving” computers that help resolve the numbers that are Internet addresses into the domain names that identify Web sites for human comprehension (and vice versa). But who has authority over the highest level of those names — such as the dot-com or dot-net domains? And who gets to operate the root servers that distribute the information?
Once upon a time, a handful of geeks made the decisions; in fact, for many years a single person, Jon Postel, had an extraordinary amount of power to decide such things as who might be responsible for an entire nation’s regional domain name system. Funded by the U.S. Department of Defense, Postel was in charge of allocating the numerical addresses for Internet domains. Those geeks often had idealistic, utopian ideas as to their responsibilities and the potential of the Internet.
Today, a coalition of special interests whose primary concern appears to be trademark protection runs the show through ICANN, the Internet Corporation for Assigned Names and Numbers. ICANN was originally formed in late 1998 as part of an agreement between the U.S. Commerce Department and a coalition of interested parties, including companies such as IBM and MCI, several foreign governments and groups representing the original technologists such as the Internet Society.
The Commerce Department has yet to relinquish ultimate “policy” authority over the root, to the dismay of foreign governments, but for all intents and purposes a governing structure has been set up that is beholden only to itself and dead set against allowing any significant level of public input or influence.
The fact that established corporate interests would be determined to protect their trademarks is not surprising. One of the fascinating sub-themes of “Ruling the Root” is Mueller’s explication of how new technologies can create new spaces in which property rights emerge and are contested. Intriguingly, the Internet’s historical identity as a primarily self-regulating system run by a technological elite did allow it to escape the more traditional regulatory regimes that govern other forms of telecommunications. ICANN is a strange new bird, an international regime that is not bound by specific treaties or founded on a clear legal framework.
But what is surprising, and disturbing, is the process by which control over the domain name system has been used to extend intellectual property rights to new heights. Ultimately, the free-speech utopia of cyberspace is evolving into a domain where corporate interests have more power to control speech than they have had in other arenas.
For example, Yahoo gets to trademark not only its own name, but at least 30 misspellings of its name. And it can prevent other groups from registering domain names with the word Yahoo in them, even if they are not competing in any way with Yahoo’s business. In both cases, Internet practice goes beyond established legal precedent.
Mueller documents and explains this process of evolution in absorbing detail, without raising his voice or lapsing into outrage.
That job belongs to his readers.
Mueller is the director of the graduate program in telecommunications and network management at Syracuse University. He analyzes the evolution of the DNS using a framework of “institutional economics” — a concept he partially defines as the intersection of law, economics and politics.
Analysis is only half the battle, however. Mueller also traces the history of Internet governance from the beginning, at a level of detail and clarity that makes “Ruling the Root” required reading for anyone interested in the history of the Net. There is, as Mueller documents, an undeniable truth to the original conception of the Net as a self-regulating creation of technologists who proceeded according to the credo of “rough consensus and running code.” For many years a small group of people who built up close personal and institutional ties ran the show, with their prime concern being technical excellence in the service of what many rightly conceived of as a project of great benefit to the general public.
As a narrative, “Ruling the Root’s” account of how the geeks eventually lost control of their creation is the clearest yet published of a complex process that occurred at lightning speed during the late 1990s. The Internet intelligentsia’s success proved to be its own downfall. The mainstream popularity of the Internet created a virtual space in which domain names, particularly those with dot-com suffixes, became economically valuable. And once that happened, the ideal of the Net as something that could be administered from the “bottom-up” via a consensus of the “Internet community” was doomed.
The opposite has happened. The Internet community, such as it is, has little to no voice in Internet governance. ICANN has done everything it can to limit the power and participation of directly elected members. And it has bent over backwards to act in ways that serve the interests of large corporations and owners of intellectual property.
For example, ICANN has dragged its feet in creating new top-level domain names — dot-biz or dot-info, for example — that might dilute the value of the dot-com domain. And when it has, after great duress, created such domains, it has proposed “sunrise” provisions in which trademark holders get first dibs on anything remotely related to their trademarks, whether or not the potential new uses would even be considered infringing according to established legal practice.
“In the domain name space,” writes Mueller, “intellectual property interests have achieved the kind of prior restraint that they have sought but never been given in other new communication media. Intellectual property holders have succeeded in gaining control, or a large amount of influence, over the point of market entry.”
The new rules, continues Mueller, “are completely insensitive to the boundaries and limitations that normally accompany trademark rights. Limitations on the ownership of words and names meant to protect freedom of speech and fair use can easily be squashed in a regime based on technical exclusivities.”
It gets worse. Administration of the root can lead not just to expanded control over intellectual property, but also to expanded powers of surveillance of Internet users.
The WHOIS database that lists administrative contacts for the “owners” of Internet domains is, in effect, a vast database of information about property holders in cyberspace.
“With the emergence of domain name-trademark conflicts, the WHOIS protocol took on a new function,” writes Mueller. “It became a surveillance tool for intellectual property holders.”
The World Intellectual Property Organization, a significant player in the “dominant coalition” that runs ICANN, has made a series of proposals recommending the expansion of the WHOIS database in ways that would make it a handy-dandy resource for policing the Net.
“Copyright interests now view expanded WHOIS functionality as a way to identify and serve process upon the owners of allegedly infringing Web sites,” writes Mueller. “That is, ‘technical coordination’ of the domain name system is already being leveraged to police the content of Web sites as well as their domain names. Moreover, public law enforcement agencies, notably the U.S. Federal Bureau of Investigation, have become deeply interested in the use of WHOIS to supplement their law enforcement activities. Ultimately, the intent seems to be to make a domain name the cyberspace equivalent of a driver’s license. Only, unlike the driver’s licenses database, this one would be publicly accessible to anyone and everyone to rummage through as they pleased.”
The difference is vast between what the Internet is becoming and how it was once envisioned. Mueller offers little hope that the process can be resisted. “Most likely … the Internet’s role as a site of radical business and technology innovation, and its status as a revolutionary force that disrupts existing social and regulatory regimes, is coming to an end.” Vested interests rule the day.
Mueller does hold out the hope that new technologies and systems are now being born, somewhere, that will attempt to subvert established structures just as the Net once did. The first step for anyone involved with those technologies who might harbor such intentions should be to learn what has gone before, lest the same mistakes be repeated all over again.
“Ruling the Root” is one very good place to begin that educational process.