A. Michael Froomkin1
The World Intellectual Property Organization (WIPO) domain name process was an ambitious and at least partly successful attempt to make rules about a public issue-the relationship between Internet domain names and intellectual property law-via a semi-private process. It produced a lengthy and very readable report, which advanced the debate over the regulation of domain names (WIPO 1999a). The semi-private process leading up to that report had several novel features, and perhaps as a result was not well understood by the public or even key participants. Trailblazing is never easy The lessons learned from this experience might suggest that this particular trail is better treated as a dead end; if, however, the process is to be repeated, as seems all too likely lessons learned from this first run can improve any future attempts at a semi-private process.
A semi-private process is a cooperative endeavor between a public body and private interests that is designed to create a body of rules enforced by some mechanism other than direct promulgation by the public body. Semi-private rulemaking should not be confused with either negotiated rulemaking or self-regulation. In negotiated rulemaking a government agency or other public body meets with representatives of the groups who will be affected by the regulation, and seeks to find agreement on rules that can then be promulgated and enforced by the government (Coglianese 1997). US law, for example, defines negotiated rulemaking as rulemaking through the use of “an advisory committee established by an agency…to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule” (US Code 5 USC section 562). True self-regulation excludes the participation of a public body Thus, much of what is loosely called “self-regulation” is not in fact self-regulation. For example, US stock exchanges engage in so-called “self-regulation” but their rules are subject to approval by the US Securities and Exchange Commission.
Semi-private rulemaking melds the two: the rules may be drafted in a process superficially similar to negotiated rulemaking, but the role of the public body is different. The public body may take a direct role in the negotiations, as did WIPO, or it may act through a private proxy Market regulation through the establishment of a government-owned market participant or by a standards body is an example of action through such a proxy. The Commerce Department's relationship with the Internet Corporation for Assigned Names