Regulating the Root: The Role of ICANN as Regulator, and Accountability

Abstract

The Internet is emphatically not a government free zone. A central part is ICANN - the Internet Corporation for Assigned Names and Numbers - the institution which regulates the ‘root’ of the internet (the domain name system and internet protocol addresses). This a fundamental element of the architecture of the Internet. We would be, literally, lost without it. In a sense, the code of the Internet, its protocols and languages are regulation - they control how the system behaves. ICANN is the regulator who regulates that ‘regulation.’ Principles of global administrative law can, once suitably modified for the context, suggest the most effective reforms.

ICANN displays features characteristic of a hybrid public-private regulator. Authority is formally delegated by the US, but importance is placed on the acceptance of ICANN as legitimate by the wider community (including technical experts). It is formed as a corporation, and regulates on a contractual basis. However, it is charged (legally) with pursuing the global public interest due to the way in which it was set up as a non-profit organization, and is essentially a monopoly. Institutional design has been approached from the start, and through successive reforms, with democratic norms in mind. However, there has historically been capture by powerful interests - due to the accountability deficit, in particular.

In order to pursue reform effectively, ICANN should focus on transparency, giving reasons, and strengthened review. To be successful however, requires strong backing from all states and an 'entrepreneur' type Board with the expertise, interest, and focus on GAL ideas, and genuine representatives to form a coalition to push for reform effectively. Counter-intuitively, a crisis of legitimacy created by criticism that ICANN is unaccountable might strengthen the force of democratic norms in its design, as NGOs and others are empowered to demand reform.

Keywords: Internet, ICANN, Global Administrative Law, Regulation, Domain Name, Accountability, Transparency