Chapter 10: ICANN as Global Regulatory Regime

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Overview

ICANN is in many ways a completely new institutional animal.

- The Economist June 10, 2000

One byproduct of ICANN's less-than-immaculate conception is a rhetorical cloud around the organization that expresses the confusion and uncertainty many people feel about its identity. Is it a standards organization or a regulator? a technical coordination body or a policymaker? private or governmental?

The U.S. Department of Commerce repeatedly refers to ICANN as the result of a policy of 'privatizing' the domain name system (DNS). Privatization normally means that the supply of a product or service has been transferred from the government to a private sector company. What the Commerce Department has turned over to ICANN, however, is not ownership of a service or asset but the authority to develop policies and to legislate binding rules for the domain name registration industry. Froomkin (2000) argues persuasively that it is nothing less than an illegal delegation of governmental powers. That very same Commerce Department, moreover, has reserved to itself ultimate 'policy authority' over the root. The General Accounting Office (GAO 2000) says that the agency does not have the authority to transfer the name and address spaces to a private firm without congressional legislation. The concept of 'privatization,' therefore, does not take us very far.

ICANN's initial board and the White Paper stressed that the new organization would be a 'technical coordinator,' not a system of 'Internet governance.' But that rhetorical gloss faded rapidly. The organization's basic function as a regulator of the domain name system has become evident, including to the U.S. Congress. ^{[1 ]}ICANN's management now explicitly acknowledges its role as a policymaker, albeit reluctantly and sotto voce. On a slide in a standard presentation by ICANN's chief policy officer, Andrew McLaughlin, the headline asks 'Does ICANN regulate?' On the first line below, in large type, it says, 'NO: ICANN Coordinates!' A second line, in much smaller type, adds: 'But: technical coordination of unique values sometimes requires accounting for non-technical policy interests.' Among the 'non-technical policy interests' listed are intellectual property, privacy, and competition policy, the three central public policy problems of the information age. At the ICANN Stockholm meeting in June 2001, the former board chair Esther Dyson went even further, claiming that ICANN was primarily an 'antitrust authority.'

So what is ICANN? This chapter argues that it is a nascent international regime, defined in chapter 4 as the organizations and rules established by states to handle governance or regulatory problems that span national boundaries. But before elaborating on that revelation, we must examine in greater detail the basis of ICANN's claim that it is something new.

^{[1 ]}U.S. Congress, Hearings of the House Committee on Energy and Commerce, 'Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?' February 8, 2001.

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