WHY JURIES SHOULD PLAY A ROLE IN THE INSTITUTIONS THAT GOVERN CYBERSPACE - PART II
By DAVID G. POST
Editors' Note: This is Part Two of a two-part article in which Professor Post examines what role juries should play in cyberspace. In Part One, Professor Post discussed why juries are a key aspect of popular sovereignty under our Constitution, and explained how the governing institutions of cyberspace have effectively created an international system of trademark law. In Part Two, Professor Post argues that the governing institutions of cyberspace should resolve domain name dispute using juries rather than arbitrators.
How Cyberspace Institutions Violate Principles of Popular Sovereignty
As I explained in Part One, for all intents and purposes, the process by which arbitrators apply the UDRP (Uniform Dispute Resolution Policy) with respect to Internet domain names, and by which ICANN (the Internet Corporation For Assigned Names and Numbers) enforces this policy, is creating a new body of international trademark law.
Now, I don't have the instinctive distaste for private law-making institutions that some of my friends and colleagues have. In my judgment, the governing rules to resolve problems such as "cybersquatting" can be made, and made well, by non-governmental institutions. So I don't object in principle to the idea that these disputes are being decided outside the traditional framework of courts and legislatures and the like. But does the UDRP process measure up to our touchstone with respect to popular sovereignty? That is, do those who are subject to this new law have any voice in its creation and application? Hardly.
The ICANN Board that adopted the UDRP is hardly a "representative" institution. Nine of its members are appointed by ICANN itself, while nine others have been appointed by "Supporting Organizations" in which the domain name holders of the world have no real voice. (In fairness to ICANN, I should point out that it is currently trying to figure out some way to make its Board a more representative institution through the election of five "At-Large Directors." But as of the time the UDRP was adopted, nothing had been worked out in that regard. And as of this writing, that is still the case)
And what about the arbitrators? Full disclosure: I myself have served as an arbitrator for a UDRP proceeding, and I helped set up one of the organizations that has received ICANN accreditation to handle these claims. So I'm no arbitrator-basher; the organizations that ICANN has thus far accredited appear to be reputable, and the arbitrators generally seem to be smart, honest folks doing a reasonably good job.
But these arbitrators can hardly claim to reflect, in any way, the views of those who are subject to their rulings. As with ICANN's board, the arbitrators, too, are appointed entirely by the very organizations that they represent. No mechanism exists whereby the public at large can select those in whom they are willing to repose their confidence. Nor is there any removal mechanism to get rid of those who have, in the public's eyes, misused their law-making authority.
We have, it seems to me, created a law-making system without law-making legitimacy a system devoid of any means by which those on whom the law is being imposed can voice their views about it and participate in its formation.
Why Having Juries Interpret the UDRP Makes Sense
But juries could solve that problem. As mentioned above, every UDRP case must resolve, among other questions, the question whether "the domain name holder has registered, or is using, the domain name in bad faith'." Why would we think that some "expert" arbitrator is better able than anyone else to decide that question? In fact, there is little reason to think so.
Consider a few scenarios in which the concept of use "in bad faith" might have to be applied. Is it "bad faith" to register porsche.com because you love Porsches and want to set up a "fan site"? Is it "bad faith" to register porsche.com if you represent the union representing Porsche workers? Is it "bad faith" to register porsche.com because you don't want Porsche, Inc. to have its own website? Is it "bad faith" to register porsche.com if you are in the business of selling second-hand Porsches? Is it "bad faith" to register porsche.com if your last name is "Porsche"? Is it "bad faith" to register porsche.com because you want to set up a website to collect critical comments about Porsche automobiles?
What gives me, or any of the other self-appointed experts who are serving as arbitrators of these disputes, any special claim to wisdom on this score? These are precisely the sorts of questions, it seems to me, on which "the people" should get to air their views, and on which an expert's opinion carries no more weight than anyone else's.
Granted, they are "legal" questions, in the sense that they require the application of what is in effect a legal rule. But those trained in the law do not have any special competence to determine how these questions should be answered in any particular case.
These questions are ultimately questions about the reasonableness (or lack thereof) of conduct. And these are just the sort of questions we place, under the Seventh Amendment, before the jury to decide in, for example, tort and contract cases that turn on whether a party has deviated from a standard of reasonable behavior in a particular industry or other context.
I don't minimize the difficulties that we might face in trying to get this institution off the ground. Deciding to use juries in the first place leads to a host of other questions: How should UDRP juries be chosen? What's the appropriate pool of jurors? What about language problems, given that this is an international system? How might we get people to view jury service in cyberspace as a kind of civic obligation (and avoid the situation where only people with too much time on their hands actually agree to serve)?
But despite these questions, and potential obstacles, this is too serious a matter to give up without a fight. The problems are not, I suspect, insurmountable and we won't know, in any event, until we try a lot harder than we have up to now to solve them. I'm going to prepare a formal submission to ICANN on how we might accomplish this, and I urge any of you who might be interested in working on this to get in touch with me (at Postd@erols.com).
You might be thinking that this is all much ado about nothing. It is surely true that, when all is said and done, the UDRP deals with a pretty narrow slice of legal questions of little concern to most people. Efforts to figure out how to make this a more legitimate process might seem hardly worth the trouble. The UDRP, though, is just the opening wedge, the first step in what will likely be a long journey towards the design of the new set of legal institutions that will be setting rules and creating a degree of order for the global network.
For better or for worse, this private law-making model is likely to serve as a template for other, more complex and more significant issues, whether administered through ICANN and the domain name system or otherwise. We'll be sorry very sorry, I think if we don't get it right.