The threshold questions about the character and mission of ICANN are significant because they define its location on a continuum that extends from a purely private business, on the one hand, to the effective equivalent of a government agency, on the other. Where an entity is located on this continuum can, in a strong sense, inform the question of whether public participation in its internal governance is essential to the organization's legitimacy.
Thus, for instance, to the extent that ICANN is viewed as a purely private business, the case for a public role in the selection of its directors, or otherwise in its decision-making process, is weak; to the extent ICANN is viewed as the functional equivalent of a governmental or quasi-governmental agency, the case for public participation in its internal governance is strong.
A model of ICANN that describes the organization as a private company engaged in a service business would likely not include any need for a public voice in its decision-making. Private organizations or companies are governed by boards of directors. The boards of private for-profit companies are typically chosen by the company's shareholders. The boards of not-for-profit companies can have electorates that vary widely, from self-selection by sitting directors to election by the "membership" of the organization. But in almost no case would the public at large choose the directors of a private company.
On the other hand, an organization or agency exercising "public" influence is usually seen as legitimate only to the extent that it is headed or controlled by one or more decision-makers who are directly or indirectly accountable to the public.
Much of the debate (and confusion) on the issue of what, if any, the proper role should be for public participation in the election of ICANN's directors, is due to the need to answer the underlying question: how to best locate and describe ICANN on the continuum between a purely private and a purely public organization.
This indeterminacy about ICANN, in turn, arises from the fact that ICANN is best viewed as a hybrid entity, having important elements in its character and mission of both a private and a public entity. ICANN is formally incorporated in the United States as a private, not-for-profit corporation (with Board members from all over the world). In a narrow legal sense, its structure is the same as other corporate entities with strictly "private" effects on society. Yet ICANN was formed through contract agreement with a U.S. government agency (an arbiter of "public" authority, at least in the U.S.), and it carries out functions that may impact millions of Internet users worldwide. Thus, its legal structure is consistent (again, at least in the U.S.) with a private set of activities, but those activities are in many ways public.
This indeterminacy is not unintended; indeed, it is the whole point of the organization. ICANN was formed for the purpose of privatizing and internationalizing public functions. It was formed to be the private organizational recipient of powers of public import-but for which no public institution yet existed to exercise them efficiently, fairly, and in a manner consistent with the global nature in the Internet.
But to say that ICANN was intended to privatize authority over the Internet does not resolve the underlying question about the location of ICANN on the public-private continuum, for two reasons.
First, the decision by the U.S. government to press for the "privatization" of functions now performed by ICANN was due not simply to a judgment that those powers should be privately held, but to a belief that the Internet's unique, global character called for a new system of administration that mirrored its transnational quality.
Following a traditional mode of thought, this goal could have been achieved by a transfer of functions to a multilateral quasi-public entity such as an international treaty organization. But ICANN was created instead, and structured to incorporate global participation in its internal governance. Thus, the creation of ICANN was as much an effort to internationalize control of central Internet functions as it was simply to privatize them. Even so, many observers criticized the Green Paper as being too U.S.-centric. Too many details of the New Entity were seen as dictated by the U.S. Government. By contrast, the White Paper addressed these criticisms by emphasizing more of the global nature of the Internet. The White Paper called for private sectors to gather globally, to discuss and formulate the new entity under their own efforts, in order to reach the consensus of all stakeholders.
In any event, the coalescence of authority in ICANN as a private entity does not alone resolve the issue of how ICANN itself should be governed in order to legitimately exercise the power it has been given. Simply to say that ICANN is a creation of privatization does not mean that ICANN should be governed like a private corporation. If ICANN retains substantial attributes of the character and mission of a public entity, then ICANN should be grounded on a governance model that confers the legitimacy of a public or quasi-public entity.
The questions about the character and mission of ICANN are closely interrelated. In many ways ICANN retains the character of a public entity because of its mission. That character is additionally influenced by the fact that some of the most important functions ICANN carries out have been transferred to it by, and in a sense ICANN is the immediate successor to, an agency of the U.S. government for the purpose of performing those functions. Because those functions were performed by a government agency, and especially because of their broad public effect, they retain the characteristics of basically public functions. And ICANN, as the entity now performing those functions, thereby inevitably assumes the character of a public agency, at least to some extent.
There is an ongoing effort by some, at least rhetorically, to re-characterize ICANN. When ICANN staff members refer to it as "the company," a reference they increasingly use, they are making a subtle linguistic attempt to stress the private, corporate nature of ICANN, as opposed to its public character. That characterization in turn reinforces the view that as a private "company" there is no basis for public participation in its governance.
More directly instructive, however, is the actual experience of ICANN, which has now been in operation for over 24 months. Over the course of that time, ICANN has exercised its decision-making authority in a variety of matters. And it is the analysis of that experience-a review of the kinds of decisions that ICANN actually makes that provides the best basis for assessing the character and mission of the organization.
| 1.1 A Value-based and Conceptual Approach | 1.1.2 The Management of the Root Is a Public Trust |
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