An unexpected moment of alchemy occured during an ILAW session yesterday: a discussion about domain name conflicts suddenly became about something larger than squabbles over who owns what.

Jonathan Zittrain began the talk with a peculiar proposition: despite all the fuss over ICANN, Zittrain argued, it may be that domain names don't really matter that much. "Cyberlaw" itself is hard enough to defend as a topic; fellow legal scholars once told Larry Lessig that a legal subfield focusing on the "law of cyberspace" was about as silly one focusing on "the law of the horse."

"That was before the field self-identified," said Zittrain, "yet the puzzle remains, and nowhere is it better demonstrated than when discussing the domain name system. The thing is, it's hard to know why we should care."

Zittrain went on to explain step-by-step how the domain name system was created and originally "governed" by one man (Jon Postel); then one man and a government contractor (NSI); then by the new "private"-yet-government-annointed organization/corporation (ICANN) forged through unhappy/hostile compromise between the two.

A lot of people got very involved in ICANN, said Zittrain, because it seemed to represent something called "Internet governance." But does it? "The 'story of ICANN' gets harder and harder to tell," he said. "Is it about shuffling deck chairs on the Titanic -- or just a canoe?"

According to Zittrain, two answers generally emerge: 1.) ICANN is important because it acts in some respects like a government, and 2.) ICANN is important because money is at stake. But it may be that the fuss over ICANN is only a historical accident. We cared largely because of timing; we thought ICANN was "Internet governance" because of the Internet bubble.

And here's where the discussion got even more interesting. If ICANN isn't "Internet governance," what is? Do we expect the same things of, say, Google that we do of ICANN or any other "government"? Generally speaking, the answer is no: Google is a private company, and we expect it to act like one.
"How upset would you be," asked Zittrain, "if Google de-listed your site?" And if you were asked in a survey about what's important to you about the Internet, would getting the right domain name really be part of the answer?

Terry Fisher responded. "I think there's a larger issue lurking there. In Western legal thought, in paricular U.S. legal thought, historically we made a public/private distinction among 'governance' orgnaizations. There are now two autonomous boxes: the state box and the private box. The private box soon came to include corporations. This new distinction got associated with constitutional law. Our principles about transparency, equality, etc, only get applied to one box, not the other.

A company could build a town, and it's private property, but we treat it as public. All of this calls into question that basic settlement. On the Internet, an ostensibly private organization can behave in ways that fundamentally affect the way we communicate. So I'm not sure the separation of boxes really works anymore."

So it seems that there is a "there," there -- but it may have less to do with applying our "two box" theory to the Internet (asking, "does this particular body act like a government?") than recognizing that we may need new definitions (asking, "what is it on the Internet that governs/centrally affects our lives/our ability to speak, etc.?).

Zittrain closed the talk by reminding us that the Internet wasn't built by the state -- and the state can't take it away from you. Nevertheless, we are in some sense being "governed"; someone's running the show -- which only makes it all the more important to become involved in shaping its future.