“Freedom of Expression, Democratic Norms, and Internet Governance” by Dawn Nunziato

Emory Law Journal, Vol. 52, p. 187, 2003. “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 Internets infrastructure, assured the United States that it would govern the Internets 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 ICANNs governance of the Internets infrastructure does not threaten free speech and that ICANNs governance of the Internet therefore need not embody special protections for free speech. I argue that ICANNs authority over the Internets 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 ICANNs 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 Internets infrastructure. …”

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