Today, the International Center for Law & Economics (ICLE) released its Innovation Policy Research Program White Paper entitled: IN ICANN WE TRUST: ASSURING ACCOUNTABLE INTERNET GOVERNANCE. This article is an abbreviated excerpt of a forthcoming scholarly article that explores various aspects of the proposed transition of the IANA Internet governance functions from U.S. oversight to full multistakeholder control in conjunction with the Internet Corporation for Assigned Names and Number (“ICANN”).
Since 1998, ICANN has been the organization tasked with overseeing the Domain Name System (DNS). Though it possesses contractual control over its registries and registrars (the entities responsible for managing and registering top level domains and domain names), illegal conduct is rarely ever deterred by ICANN. For instance, the organization has refused to effectively deter content piracy on the Internet, and pirated content currently constitutes nearly one-quarter of Internet traffic. ICANN has consistently claimed that its role in Internet governance is merely a technical one, and that it is not the “regulator of Internet content.” However, the impending transfer of IANA stewardship entails imbuing ICANN with an overtly government-like function that demands more than mere technical acuity. Whatever ICANN’s historical role has been, following the transition ICANN will have a dual role — one that includes the obligation to properly “steward” the DNS, as well as to technically administer it.
The full forthcoming paper develops a recommendation that the post-transition ICANN be structurally designed to account for the public interest concerns of the multistakeholder community. Building on existing scholarship, as well as recommendations that have emerged from the Cross-Community Working Group on Accountability, we recommend implementation of strong due process controls within the organization in order to provide the checks and balances that would restrain the organization suitably while also allowing it to answer to the policy concerns of the multistakeholder community. Further, as a private organization without government oversight, the recognition and enforcement of contractual provisions with registries and registrars is an essential component of assuring the accountability of the organization and the achievement of multistakeholder policy goals.
Historically there have been criticisms of ICANN — both in terms of the direct accountability of the board to the stakeholder community as well as in terms of its refusal to enforce its own contracts. This paper develops a theory of implementation for the organization that attempts to resolve these problems and, ideally, to give the NTIA and Congress a frame for understanding the broader needs of accountability in the new post-transition ICANN.