10.2.1 Rights to Names

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ICANN defines and enforces property rights in names. This function involves the recognition and protection of various kinds of intellectual property claims on domain name assignments, and the resolution of disputes based on those claims. Name rights are defined and enforced via the Uniform Dispute Resolution Policy (UDRP), registrar accreditation contracts that commit consumers to binding arbitration via the UDRP, and registry contracts that exclude specific names from the DNS database or impose preferential procedures for the initial assignment of names. ICANN's role in the creation of global rights to names is analyzed in greater depth in chapter 11.

10.2.2 Regulation of Domain Name Supply Industry

The second policy area is economic regulation of the supply industry for domain names. ICANN uses its control of the root to regulate the supply of top-level domains, and to regulate the price, performance, and market structure of the domain name registration industry. It (along with the Department of Commerce) imposes price controls on registries and enforces a vertical separation between registry and registrar aspects of the business. In the future, it may be required to take on additional regulatory functions pertaining to the relationship between registrars and registries, consumer complaints against registrars, and the merger of registries. ICANN's position as gateway to the root may also allow it to play an important role in the standardization of internationalized domain names (see section 10.3.3).

10.2.3 Surveillance and Law Enforcement

The third policy area involves the exploitation of the data generated by Internet identifiers to facilitate surveillance and control of Internet users by law enforcement agencies. This function is now primarily concerned with the exploitation of WHOIS data for intellectual property protection (see chapter 11). But if the ICANN regime survives, this aspect of policymaking will probably play a much larger role in the future. Paul Twomey, the Australian government official and first chair of the Governmental Advisory Committee (GAC), observed in January 1999 that a 'centralized registry functioning as a monopoly' was necessary to support 'consumer protection,' 'the resolution of intellectual property disputes,' and 'a capacity for indirect taxation of e-commerce.' ^{[6 ]}The prospect of linking the surveillance capabilities enabled by the DNS databases to e-commerce taxation makes as much sense as linking it to copyright protection, so Twomey's statement cannot be dismissed as the dream of a power-hungry politician. The use of a centralized identification mechanism that gives authorities both the ability to identify private actors and some control over their access to cyberspace will probably prove to be too tempting to pass up.

10.2.4 The Informal Regime

In short, ICANN is not pioneering a radically new and better form of global policymaking. It is simply a resource-based international regulatory regime. The only remarkable and unique thing about it is that its creators have succeeded in building a rough facsimile of an international treaty organization without a treaty. The agreements were forged outside the typical international negotiating arenas, and the leading state actor, the United States, disavowed direct participation and instead delegated authority to a private corporation. However, ICANN is fundamentally a U.S. government contractor, and the White Paper process was just a less formal mechanism for gaining input from other states (as well as many private sector parties) to produce a policy document that the major parties could agree upon. There is some precedent in the formation of Comsat and Intelsat in the 1960s and 1970s (Kinsley 1976; Oslund 1977).

It is the informality of ICANN's arrangements, and their origins in semiprivate initiatives such as the gTLD-MoU or the IANA-GIP-Internet Society alliance that is new. The instruments on which the regime is founded, such as the White Paper, the Internet Request for Comments series, and the WIPO processes, all share a fuzzy legal status, standing somewhere between formal governmental rule making and private sector arrangements. More important than the documents themselves are the informal political deals between governmental and private actors that generated them. ICANN is the product of a somewhat precarious bargain between the Internet technical hierarchy, a few major e-commerce and telecommunication firms, intellectual property interests (including WIPO), the European Union, the Department of Commerce, and one or two other national governments, notably Australia. Chapter 8 analyzed the formation of this 'dominant coalition' at some length. Should any one of these major players decide to abandon or actively oppose ICANN, the edifice will crumble or require major adjustments in policy and structure. This is the only sense in which ICANN is based on consensus.

A clear-eyed analysis of the institutionalization of the root must conclude that, contrary to the Johnson-Crawford theory, ICANN is linked to, and shares many of the characteristics of, state sovereign power. The network externalities that support convergence on a single root provide something close to the coercive effect of law. True, there is the possibility of competing roots, but ICANN's registry contracts, and those imposed on

Network Solutions by the Department of Commerce, explicitly exclude dealings with other roots by participants in ICANN's regime. This is not the behavior of a system based on voluntary cooperation and consensus; it is an overt attempt to foreclose alternatives in order to preserve the regulatory capabilities of the regime. Furthermore, much of ICANN's agenda has been and is being driven by governments and international treaty organizations. European and Asian governments played an overt role in the selection of ICANN's initial board. An international intergovernmental organization, WIPO, took the lead in creating ICANN's approach to trademark protection and is moving to recognize new rights to names (see chapter 11). The GAC has exerted persistent pressure on the delegation and regulation of country code top-level domains. The European Union has requested and will receive a special delegation of an .eu top-level domain. The Commerce Department took the lead in imposing regulation on Network Solutions, and was urged on by the European Commission. And of course, the Department of Commerce still holds ultimate authority over the root.

National governments intent on regulating the Internet are beginning to discover how essential to their efforts the leverage of the root can be; recall the statement by Twomey quoted in section 10.2.3. Only in the United States, where the prestige of the IETF and the accompanying ideology of privatization and self-governance prevail, are people less attuned to this reality. In Europe, ICANN is viewed unsentimentally for what it is: a nascent Internet governance regime (Bertelsmann Foundation 2001).

^{[6 ]}Paul Twomey, National Office for the Information Economy (Australia), Minutes of the .au Domain Administration Board Meeting, Melbourne, January 10, 1999, <http://www.auda.org.au/minutes/2000-01.html>.

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