International Governance

When Is Property Not Property?

By Paul Rosenzweig
Tuesday, September 20, 2016, 10:16 AM

One sometimes thinks that consistency is the stock-in-trade of attorneys. We insist (sometimes even foolishly, pace Emerson) that words have consistent meaning and that the implications of how we use them are well worked out.

A case in point is the use of the word "property" in the ICANN transition. As readers will recall two years ago, the Obama Administration announced its decision to allow a contract with the Internet Corporation for Assigned Names and Numbers (ICANN) to lapse. The practical implication of that decision will be for ICANN to assume sole responsibility for the development of policy over the naming and numbering function of the Internet. One of the many unanswered questions that came up was whether the "root zone" -- that is the authoritative list of the top-level-domains -- is "property" under law. If it is, then giving away control of it to ICANN might be considered the disposition of government property -- an act that would affirmatively require Congressional approval. In a report published last week, the Government Accountability Office offered the opinion that, though the matter was not free from doubt, the root zone was not "property" under law. In particular they said that: "It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use."

Let's assume the accuracy of that conclusion for purposes of discussion. It seems to be inconsistent with (if not contrary to) the resolution of another one of the outstanding issues—the control of the .mil and .gov domains. Today, those domains are under the management of the US government for its exclusive use. (An interesting aside—when first created, the .gov domain was intended for all governments around the globe, but it has not worked out that way.) One issue that has been asked about is how, post-transition, the US government would ensure that these two domains remained exclusively delegated to the US. The answer that has been chosen is an exchange of letters reflecting the current state of affairs and committing ICANN to provide notice to the US if it ever thought of changing the existing arrangement.

Fair enough, but some (including me) wondered why this agreement was not embodied in an enforceable contractual arrangement. At the hearing last week, the Assistant Secretary gave an intersting answer. He said that the government had chosen the letter exchange instead of a contract because of "sovereignity concerns." The exchange was brief and incomplete, but I infer from the comment that there was some worry that by entering into a contract with ICANN the government would be acknowledging that ICANN had some control over .mil and .gov, which would conflict with the US's assertion of a sovereignity interest. [The exchange begins with a question from Senator Grassley at 1:14:00 of the hearing.]

The intersting and challenging part of this response is the implicit assertion of a sovereign interest in ... what exactly? Presumably in the US government's continued control of the .mil and .gov domains to the exclusion of all others, including to the exclusion of ICANN's ability to take it away. And here is where the lawyerly Emerson raises his head and asks about consistency. For the assertion of sovereign control over .mil and .gov certainly sounds like the US government considers itself an "entity [with] a right to the[] exclusive possession or use" of those domains -- and that seems to make them "property."

So which is it? Are domains property? In that case how do we give them away without Congressional approval? Or are they "not property"? In which case, how do we assert a sovereign interest in them?