Freedom of Expression, Democratic Norms, and Internet Governance

Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, most importantly, protection for freedom of expression. In this Article, I challenge the prevailing idea that ICANN's governance of the Internet's infrastructure does not threaten free speech and that ICANN's governance of the Internet therefore need not embody special protections for free speech. I argue that ICANN's authority over the Internet's infrastructure empowers it to enact regulations affecting speech within the most powerful forum for expression ever developed. ICANN cannot remain true to the democratic norms it was designed to embody unless it adopts policies to protect freedom of expression. While ICANN's recent self-evaluation and proposed reforms are intended to ensure compliance with its obligations under its governance agreement, these proposed reforms will render it less able to embody the norms of liberal democracy and less capable of protecting individuals' fundamental rights. Unless ICANN reforms its governance structure to render it consistent with the procedural and substantive norms of democracy articulated herein, ICANN should be stripped of its decision-making authority over the Internet's infrastructure. ICANN has two significant roles in regulating speech on the Internet. First, ICANN has established a policy that essentially prohibits websites from being maintained anonymously, which erects substantial barriers to individuals' ability to freely engage in anonymous Internet speech. Second, ICANN's policy for adjudicating disputes between intellectual property owners and domain name holders restricts Internet users' ability to engage in critical speech. These policies significantly affect Internet users' right to free speech, and thus ICANN serves a significant public ordering function with respect to speech on the Internet. As the functional equivalent of a public actor, ICANN should be held to the normative procedural and substantive ideals of democracy that we generally require of governments. In this Article, I set forth my conception of the normative procedural and substantive ideals of liberal democracy, with an eye toward how these ideals should be implemented in the context of Internet governance. I then examine whether ICANN's governance structure embodies the normative ideals of liberal democracy. While ICANN's framers committed it to procedural democratic norms, they failed to commit ICANN to substantive normative ideals integral to liberal democracy such as the protection of freedom of expression. Next, I provide concrete recommendations for ICANN to implement meaningful protections for freedom of expression by looking to the general themes and principles embodied within the United States' First Amendment jurisprudence. These First Amendment themes and principles should guide ICANN as it revises its policies to incorporate the liberal democratic norm of freedom of expression. I propose several ways in which ICANN should revise its policies to accord meaningful protection for freedom of expression. First, ICANN should allow Internet users' to maintain websites without requiring them to disclose personal identifying information. Second, ICANN should incorporate meaningful protections for the right to engage in critical speech into its policy applying to the resolution of disputes between trademark owners and domain name holders. Finally, ICANN should constitute an Independent Review Panel responsible for evaluating ICANN policy making for adherence to the procedural and substantive commitments articulated in its foundational documents. ICANN should be held to its commitment to normative procedural ideals of liberal democracy, and its governance structure should be revised to accord meaningful protections for the substantive norms of liberal democracy, including protections for freedom of expression. In particular, ICANN should revise its speech-related policies to accord meaningful protection for Internet users' right to engage in anonymous speech and their right to engage in critical speech.