A Jurisprudential Approach to Governments and Other Actors Attempts to Control the Internet Root Zone

Abstract

In today’s world, no treaty regulates the Internet. Moreover, no international court has ruled over the Internet infrastructure. Despite this situation, governments (on behalf of their nation-states) and government bodies have tried to assert sovereignty over the Internet and stop or compromise the transmission of the Internet packets. Although the multi-stakeholder model of the Internet has been successful of keeping the Internet from a single point of control, many scholars and non-scholars have suggested the application of the rules of the United Nations Convention on the Law of the Sea (UNCLOS) over the Internet. The purpose of these claims is solving controversies when multiple jurisdictions are involved (Barcomb, 2013; Kalpokienė & Kalpokas, 2012; Schmidt, 2017; Steven, 2001). However, as previous research suggests the application of the UNCLOS rules is also a call to apply the Westphalian model of sovereignty over the Internet (Vargas-Leon, 2017; Vargas Leon & Badiei, 2017). The application of the rules of UNCLOS into the Internet Root Zone is an example of governments’ traditional practice to exercise their jurisdiction beyond their territorial borders. This practice is characterized by the “coexistence” of spaces where nation-states keep for themselves different levels of sovereignty. Similarly to the rules of UNCLOS over the territorial sea and the high sea, when it comes to the application of sovereignty rules into the Internet realm, governments developed the following practices: (1) leave spaces where no sovereignty claims exist (at least theoretically), like the Root Zone itself, (2) exercise some level of sovereignty over some of the elements of the Root Zone, such as the country-code-top-level-domains (ccTLDs) and (3) leave spaces where their jurisdiction is exclusive, like in the delegation of the ccTLDs (Vargas Leon & Badiei, 2017). By using a multiple case study approach including the Iranian registry case and the .Amazon and .Africa controversies, this paper is an attempt to analyze, from a jurisprudential point of view, how the coexistence of different levels of jurisdiction exist within the Internet realm and how different actors, like individuals, court systems and government bodies get involved. As we should remember each one of the proposed case studies represents a scenario where the involved actors attempted to control some elements of the Internet Root Zone. The case Ben Haim vs. the Islamic Republic of Iran was an attempt of U.S. terrorist victims to seize control of the .ir Internet domain name, which is also Iran’s national country-code top-level domain (ccTLD) (Rabkin, 2014). The case .Amazon pits U.S. Amazon against the government of Brazil and Peru. Although the final decision belongs to the Internet Corporation for Assigned Names and Numbers (ICANN), the Government Advisory Committee (GAC) (formed only by governments) backed Peru and Brazil claim (Segal, 2017). Finally the case .Africa controversy involves DotConnectAfrica (DCA) vs. ICANN; in this case, a Los Angeles court refused a preliminary injunction that prevents ICANN from adding .Africa to the Internet (McCarthy, 2017). This paper is an attempt to answer the following questions: What are the governments and governments’ organizations legal arguments to justify extending nation-states’ sovereignty into the Internet Root Zone? What are the non-governmental actors arguments use to try to control the Internet Root Zone? With this purpose in mind, our aim in this paper is to illustrate how the classic arguments governments used in the international domain affect the Internet Root Zone and the Internet infrastructure. Alongside with governments’ claims, we will attempt to look at the arguments non-governmental actors have used for the same purpose. Finally, we want to clarify that this paper does not advocate for any governance model for the root zone. Findings expect to explain the diverse legal opinions this matter has generated in the legal field and how they can influence the Internet governance debate.