The creation of ICANN was sought by the United States government to promote international cooperation in the governance of the Internet based on a bottom-up system in which government intervention was limited, if not eliminated. However, as the Internet has become a global phenomenon this initiative has faced important opposition from the international community. As we have shown in this work, the evolution of ICANN reveals how ICANN slowly departed from its mere technical role into a more political one, in which all groups and constituencies try to reach consensus about its polices. Furthermore, the mild success of ICANN in its first three years showed that a pure bottom-up model is unable to efficiently regulate the Internet. As the reform movement was initiated from inside ICANN, the different constituencies tried to exploit the situation by gaining power positions in the new structure. The initial proposal recognized a bigger role for international governments as a way to overcome structural deficiencies of a private institution. However, the political strength of different groups and constituencies within ICANN reversed some of the initial reforms and produced a totally new structure. Reform attempts from inside ICANN were complemented by reform attempts by the international community. These efforts concentrated on changing the main structure of ICANN into a multilateral organization controlled by international governments and removing the direct control of ICANN from the United States government. In the end, even though the proposals seem to look for different structures to regulate domain names and numbers on the Internet, they represent a political struggle between opposite points of view.
Among the results of our analysis we can highlight the following: first, as a result of the reform process, the private sector consolidated its political position in the ICANN structure, at least in the short run. With the new Bylaws, the private sector could retain some of the power they had before and even gain more power. Among the winners of the reforms are: the GNSO constituencies, which gained important power spaces in the new design, ASO members, which had some gains, but more importantly, are still debating their future, possibly more expansive, relationship with ICANN, and the ccNSO, which were recognized as an independent Supporting Organization. The latter group will provide one of the few ways to cooperate with international organizations and governments. Nonetheless, the inside-out attempt to reform proved to be weak, because it failed to bring outside constituencies to the governance body and created opposition from the international community. Thus, Internet users are among the losers of the inside-out reform attempt because they lost the privilege to elect At-Large members by popular vote. The new Bylaws created a Nominating Committee, which undermined most of the original power Internet At-Large members had. PSO members lost more power than any other entity inside the ICANN organization. The PSO was eliminated and their members were transferred to the Technical Liaison Group (TLG) to serve mere advisory roles, with slight participation in selecting Board members. Even though, this group retained the capacity to give technical advice to the Board, it does not have as much say on the definitive implementation of policies. By reinforcing CGA as an advisory institution inside all major corporate groups and constituencies, ICANN initiated a new relationship with its governments, which could positively effect future policy implementation. However, the stakeholders of ICANN, who resisted governmental intervention, rapidly watered down the active role for governments suggested in the first reform proposal.
The inside-out reform process allowed us to examine the political strength of its different groups. This process also showed how ICANN has become more of a political instrument, instead of a technical corporation. An indication of this is that most of the debate on the reform was based on how to divide the power inside ICANN, more specifically inside the Board of Directors, and how to maximize the capacity of each group to enforce their policies.
Second, our analysis shows how the inside-out reforms sought to enhance international cooperation. Creating a Supporting Organization for the ccNSO and the incentives for international governments to participate in a better CGA opened the ICANN gates to more extensive international participation in policymaking. However, the international community did not respond adequately to the reform and tried to generate its own model for Internet Governance.
The response of the International community to the regulatory regime of ICANN was the creation of a new organization with international ties and controlled by governments. This proposal, as summarized in the WGIG report, sought to overhaul ICANN and take away the United States direct control of ICANN and the management of names and numbers on the Internet. As a result, we face a struggle between two different types of regulation, a bottom-up approach, with more participation from the private sector, and a top-down approach which intends to take Internet governance into the international arena.
As shown in this paper, Internet regulation has become a hot political issue, and the organizations in charge of managing the regulatory regime will reflect these political preferences. The effectiveness of any of these regulatory regimes will depend on how well the specific structure of power provides an opportunity for consensus. In the end, the reform and the political struggle behind it have unmasked the political nature of ICANN. As a result, its future will depend on the consensus of its constituents and on the struggle between state and private sectors. In this debate, the United States government is one of the only governments defending ICANN in its current structure, because of the contract that ties ICANN directly to the US Department of Commerce. On the other hand, the international community is pushing the United States to hand over its sole control of ICANN.
Given the tension between both parties, we believe that this transition could be pushed forward by the creation of a supranational entity in charge, not just of ICANN’s responsibilities, but also of other areas related to the Internet, i.e., e-commerce, Internet security. We call this organization the World Internet Governance Organization (WIGO), managed by a board representing the developed countries and the technical groups with a stake in the Internet. This would entail an institution organized somewhere in between the unilateral regime represented by ICANN and the multilateral approach proposed by the United Nations. WIGO would allow both parties to obtain part of what they are looking for. The US would retain some power in designing the system, while other developed and developing countries would have more say in the direction of the system. A well-thought proposal that considers the foremost needs of the Internet will have a greater chance of succeeding than individual attempts to overtake over the governance of the Internet. Furthermore, it will generate a point of convergence for the diverse preferences of international stakeholders. Nonetheless, the success of such a proposal requires countries to realize that unorganized or individual attempts to regulate will not carry the day.
Computer Law | Cyberspace Law | Economics | Law and Economics | Science and Technology
Date of this Version
Jay P. Kesan and Andres A. Gallo, "Pondering the Politics of Private Procedures: The Case of ICANN" (April 2007). University of Illinois Law and Economics Working Papers. Working Paper 74.