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Control over access to critical portions of the Internet’s technical infrastructure (such as the Internet’s domain name system, or “DNS”) is increasingly being used as a means to enforce private and public law around the globe. This “Internet-governance-by-infrastructure” is the subject of my on “Internet Infrastructure and IP Censorship.”

In the paper, chosen to inaugurate IP Justice’s new publication series on “Internet Governance and Online Freedom,” I describe the core features of these new governance mechanisms, along with some of the reasons why these schemes should have us on high alert. The paper also highlights some of the core problems — involving Internet neutrality, legitimacy, institutional competence, due process, and free expression — that such schemes inevitably raise.

As these infrastructure-based systems are efficient in ways that the ordinary conventional mechanisms of international law enforcement cannot hope to match — fully automated judgment execution machines that can operate, virtually instantaneously, on anyone in any corner of the planet — it is also virtually inevitable that they will be pressed into service under many new guises and in many new implementations in the years to come. Difficult questions about the appropriate scope of governance-by-infrastructure are, for example, at the heart of the “IANA Transition” — the U.S. government’s decision to over one of the core infrastructure providers, the Internet Corporation for Assigned Names and Numbers (“ICANN”). Our ability to analyze, understand, and respond to these novel governance schemes will surely be put to the test in the years to come.