Jonathan Weinberg

ICANN and the Problem of Legitimacy

Two years ago, an entity called the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to take control of the Internets 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 ICANNs authority over the domain name space. ICANN is addressing important public policy issues, 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. Further, ICANN is implementing some of its choices via means that look uncannily like command-and-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 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 agencys 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. ICANNs 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 ICANNs structure. Although elections can broaden the set of communities given a voice within ICANNs halls, they cannot render ICANN into a reflection of the Internet community. They can improve ICANNs 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.

Geeks and Greeks

Rejects arguments that ICANN is engaged in mere technical management or technical co‐ordination, rather than political governance. Examines ICANN’s structure through the lens of Aristotle’s philosophy, stating Aristotle was not democratic in a modern sense. Proclaims Aristotle saw representative structures as an important check on elite and economic power, also as a source of valuable competing perspective.

Broadcasting and Speech

Introduction ................................................... 1103 I. Public-Interest Licensing and the Free Speech Tradition .... 1110 A. A Quick Tour of Free Speech Philosophy .............. 1110 B. The Nature of Our Broadcast Regulatory System ....... 1114 1. Selecting the Licensee .............................. 1115 2. Renewal ........................................... 1120 3. M isconduct ........................................ 1125 C. Public-Interest Licensing and Free Speech Philosophy .. 1130 1. The Essential Conflict .............................. 1130 2. The Red Lion Rationale ........................... 1132 II. The Free Speech Tradition Reexamined .................... 1138 A. Do the Premises of Marketplace Theory Matter? . . . . . . . 1144 B. Are the Premises of Marketplace Theory Correct? . . . . . . 1148 1. Equality ........................................... 1149 2. Rationality ........................................ 1157 III. Putting It Together ........................................ 1164 A. An Initial Framework ................................. 1167 B. Explaining Speech Law ................................ 1181 C. A House Divided ...................................... 1190 IV. Where Do We Go from Here? ........ . . . . . . . . . . . . . . . . . . . . . 1193 Conclusion ..................................................... 1204

Non-State Actors and Global Informal Governance - The Case of ICANN

This chapter will appear as part of the forthcoming INTERNATIONAL HANDBOOK ON INFORMAL GOVERNANCE (Thomas Christiansen & Christine Neuhold, eds.). It examines the history of the Internet Corporation for Assigned Names and Numbers, or ICANN. ICANN is an unusual beast. When it came into existence, it faced legitimacy challenges: some were unconvinced that it was an appropriate wielder of the power it claimed, that they had any obligation to cooperate in its governance functions, or that they should comply with its pronouncements. I argue in this chapter that ICANN’s key move in establishing its legitimacy was its expansion and bureaucratization. ICANN initially positioned itself as an informal technical coordination body in the tradition of the Internet Engineering Task Force: today, it has shifted to adopt the appearance, processes and culture of a modern large bureaucracy. In seeking to be accepted by business enterprises and governments, it structured itself so that it looks like a business enterprise or government. It negotiated successfully with influential players as to the goals it should pursue, and reframed its structure and culture so as to conform to their images of what a successful and legitimate organization ought to look like.

Global ID, trusted systems, and communications markets

This paper examines the implications of technology identifying each consumer by a single globally unique identifier, or GUID. Such technology allows Internet content providers straightforwardly to identify the consumer originating any given packet stream, and to correlate incoming payment (and other) information to the information and entertainment that the content provider releases to that consumer. These systems promise to give content providers sharply expanded powers to discriminate among consumers. The paper suggests that, on balance, this result would be a Bad Thing. Further, the result could be avoided if content providers relied on more sophisticated techniques to manage access to their information goods.