10.2 What ICANN Is

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To understand ICANN one must first move beyond the hopeful notion that the Internet is intrinsically voluntary and cannot be institutionalized or controlled. ICANN is here to change that. ICANN must be understood as a new international regime formed around a global shared resource. ^{[4 ]}Its purpose is to define property rights in Internet identifiers and to regulate their consumption and supply. Traditional regime theory is centered on the actions of states and holds that they come into existence to overcome collective goods problems by coordinating the behaviors of individual states. The emerging Internet governance regime is the product of an informal political agreement among national governments, and the agreement includes a much more extensive role for private sector actors. That fact does make ICANN different from other international regimes (see section 10.2.4), but it does not change its basic nature. It is much more accurate and analytically fruitful to define ICANN as a variant of a standard international regime than it is to think of it as something sui generis.

ICANN is not primarily concerned with technical coordination, nor is it a standards-setting organization. Rather, it is an institution that ties the need for technical coordination to regulation of the industry built around the resources it manages. That is why I refer to it as a global regulatory regime. The closest analogue is radio frequency administration at the national level. ^{[5 ]}Nominally, the assignment of radio frequencies in a given location must be coordinated to prevent electromagnetic interference among users. As any student of broadcasting and telecommunication policy knows, however, national governments don't simply coordinate frequency use; they regulate wireless industries by attaching conditions and standards to the assignment of frequencies. Sometimes the regulatory intent of the conditions is overt, as when broadcast licensees are required to fulfill specific public interest obligations or when broadcast content is regulated or censored as a condition of using a broadcast channel. The industry can also be regulated in less direct but equally important ways, through the imposition of uniform technical standards, by controlling the number of entrants into the market, or by approving or rejecting corporate mergers. The common element is that the regime has exclusive control of a critical input into an industry and uses the leverage it has over access to that resource to regulate the industry. In radio spectrum management, control is exercised through licenses issued by government regulatory agencies. In ICANN's case, regulation of conduct and market structure is imposed on registries and registrars via contracts with the root administrator.

ICANN's control of the root is used to make and enforce policy in three broad areas: defining and enforcing rights to names; regulation of the domain name supply industry; and the linkage of online identity to law enforcement.

^{[4 ]}International regimes are defined by Krasner (1984, 2) as 'arrangements that pertain to well-defined activities, resources or geographical areas,' consisting of 'principles, rules, norms and decision-making procedures, around which actors' expectations converge.'

^{[5 ]}Internationally, radio spectrum management through the International Telecommunication Union is mostly confined to technical coordination. Allocation and assignment of frequencies at the international level is not leveraged to exert policy control over national telecommunication regimes because the ITU is subordinate to national governments and they (or at least, the most powerful ones) would never relinquish such authority.

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