ICANN and the Problem of Legitimacy

Abstract

Two years ago, an entity called the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to take control of the Internet’s infrastructure of domain name and IP address identifiers. Private parties formed ICANN at the behest of the U.S. government; the government is currently using its considerable resources to cement ICANN’s authority over the domain name space. ICANN’s role is one generally played in our society by public entities. It is setting rules for an international communications medium of surpassing importance. That task had historically been performed by a U.S. government contractor in an explicitly public-regarding manner. ICANN is addressing important public policy issues. Further, it is implementing some of its choices via means that look uncannily like commandand-control regulation. If ICANN is to establish its legitimacy, it must be able to answer the charge that its exercise of authority is inconsistent with our ordinary understandings about public power and public policymaking. In developing structures, procedures, and rhetoric to establish its own legitimacy, ICANN has drawn on techniques that parallel the Copyright © 2000 by Jonathan Weinberg. † Professor of Law, Wayne State University. I owe thanks to Karl Auerbach, Diane Cabell, Michael Froomkin, Ellen Rony, Tony Rutkowski, Richard Sexton and, above all, Jessica Litman. I presented an earlier version of this Article in Durham, N.C., on March 3, 2000, and a different, somewhat truncated, version, under the title “Free Governance,” at the Conference on a Free Information Ecology in the Digital Environment, in New York, N.Y., on April 2, 2000. Disclaimers: I was a legal-scholar-in-residence at the Federal Communications Commission in 1997-98, where I participated via an interagency working group in the U.S. government’s policymaking process regarding management of Internet names and addresses during the period leading up to the release of the Green Paper. More recently, I was the co-chair of a working group established by ICANN’s Names Council to formulate recommendations regarding the deployment of new generic top-level domains. The views expressed in this Article, however, are solely my own: I do not and could not speak for the U.S. government, the Names Council, or the working group. WEINBERG2.DOC 10/30/00 8:49 AM 188 DUKE LAW JOURNAL [Vol. 50:187 justifications historically offered to defend the legitimacy of the unelected federal administrative agency. First, it has invoked what one might call the techniques of administrative law: it has, in important respects, structured itself so that it looks like a classic U.S. administrative agency, using and purportedly bound by the tools of bureaucratic rationality. Yet the techniques of administrative law are inadequate in this context, for they do not provide meaningful constraint in the absence of judicial review. In the administrative agency context, it is judicial review for rationality and statutory faithfulness that drives the agency’s own commitment to process and rationality. But there is no ICANN institution that performs the function that judicial review performs for administrative agencies. Second, ICANN has invoked the techniques of representation: it has adopted structures and procedures that make it resemble a representative (that is to say, elective) government body. ICANN’s election of new at-large directors, as this Article goes to press, including candidates who campaigned on a platform of skepticism and reform, is heartening. Yet the task of representation is hardly straightforward. There may be no way to craft an elective mechanism that ensures that the immensely heterogeneous Internet community is represented, in any real sense, within ICANN’s structure. Although elections can broaden the set of communities given a voice within ICANN’s halls, they cannot render ICANN into a reflection of the Internet community. They can improve ICANN’s decisionmaking, but they cannot reliably aggregate the preferences of the Internet world at large, and thus tell ICANN whether to adopt a disputed policy. Finally, ICANN has invoked the techniques of consensus: it has asserted that its structure and rules ensure that it can only act in ways that reflect the consensus of the Internet community. But this is illusory. ICANN does not have procedures that would enable it to recognize consensus, or the lack of consensus, surrounding any given issue. It has commonly taken actions with no clear showing of consensus in the community at large, and its methods of determining that a particular action is supported by consensus have often seemed opaque. Indeed, there is no reason to believe that the issues over which ICANN seeks to exercise authority are ones around which any genuine consensus can be formed. WEINBERG2.DOC 10/30/00 8:49 AM 2000] ICANN AND THE PROBLEM OF LEGITIMACY 189