ccTLDs, ICANN, Canadian digital sovereignty
Country code top level domains (‘‘ccTLD’’s), such as .ca, are distinct from generic top-level domains (‘‘gTLD’’s), such as .com, in that they are generally conceived to be associated with a specific country. In Canada, the authority to operate the technical functions of the .ca domain name registry has been delegated to the Canadian Internet Registration Authority (‘‘CIRA’’) by a United States non-profit corporation, the Internet Corporation for Assigned Names and Numbers (‘‘ICANN’’). The authority to make policy regarding the .ca has purportedly been delegated to CIRA by the Government of Canada. There is an issue, however, as to whether ICANN’s delegation of authority to CIRA to manage the technical functions of the .ca reflects a diminished ability of Canada to decide the identity of the .ca registry and, by implication, to control the registry’s operational policies, thereby diminishing Canada’s sovereignty over the .ca domain.
While ICANN has been criticized as illegitimate, unfair, anticompetitive and its dispute settlement procedure systematically biased, this paper steps back from those issues and asks whether acknowledging the technical authority of a private foreign entity over the .ca domain is consistent with Canada’s commitment to political sovereignty. For, as Lessig has pointed out, in cyberspace, code (computer hardware and software) is like law in that code regulates how cyberspace behaves. Applying this observation to the DNS, we argue that the structure of the DNS, which enables the U.S. Department of Commerce (‘‘DoC’’) to decide who manages the technical aspects of the .ca, implies that Canada lacks sovereign control over the .ca domain space and related policies and laws.
Gregory R. Hagen and Kim G. von Arx, "The Patriation of .ca" (2002) 1:3 CJLT.