http://aranea.law.bris.ac.uk/JMLS/Pub_Nominet.html An Island in the Net: Domain Naming and English Administrative Law (1997) Mark Gould [...] Grant Jordan has identified three justifications for governmental intervention to regulate otherwise market-driven activities. These are (1) in the event of market failure or where the "short-run benefits of competition are outweighed by longer-run costs;" (2) where there is a need for regulation to prevent behavior which would discredit the idea of the market or to provide a framework for efficient competition; and (3) where free operation of the market might have harmful externalities. In the absence of explicit governmental action to regulate private activities, it is also possible for the courts to undertake regulation where appropriate. If we adhere to Jordan's threefold justification for regulation, it is a relatively straightforward task to confirm that the activities of Internet institutions have a public character and that they are suitable for regulation. We may, however, be less confident about the proper locus for that regulation. Although the market in network standards has not failed (since there is no compulsion to use the Internet Protocols (IP)), the Internet has become the prevailing network protocol for a variety of purposes. It may be necessary for the de facto monopoly in Internet standards to be subjected to some form of regulation. Likewise, it is possible that decisions taken about the network (such as decisions relating to IP number allocation, domain registry or routing priorities) are likely to have both positive and negative externalities. If commercial interests are to be balanced with the public interest on a global scale, it is necessary to consider where such a balance, or regulation, should take place. [...] ============= See also Gould, "Governance of the Internet--a UK perspective" http://aranea.law.bris.ac.uk/Harvard/HarvardFinal.html where it is argued "that the Internet institutions form the basis for a type of constitutional governance which, when enhanced, might stave off most calls for external regulation." [...] If one takes the view that these resources have a public character, then even though they are administered by a private commercial enterprise they should be regulated in order to ensure that the community at large can be sure that they are being administered in the best way possible, and especially by taking into account interests which are not necessarily particularly powerful. Are they, then, public in nature? Following the immense growth in the Internet as a means of communication, I would argue that the core functions should be treated as public. In its early years, the Internet was more akin to a private system, but its growth into a major infrastructure means that the market-type allocation of resources of those early years is now inappropriate. [...]
