Since its inception, ICANN has had to grapple with the most fundamental issue it confronts-that of its own legitimacy.
For ICANN to attain the requisite legitimacy, it must, at a minimum:
It is increasingly clear that ICANN serves a vital global public trust. And for that reason, it is undeniable that there is a strong and direct public interest in ICANN.
ICANN must be structured to take account of that public interest in the processes of its own internal governance. ICANN must establish its own legitimacy to make decisions that profoundly affect the public interest. That legitimacy depends substantially on having a public voice that is structured to participate in the policy development of ICANN, that is represented in the decision-making of ICANN and that has a role in ensuring that ICANN is accountable and held faithful to its mission.
With astonishing rapidity, the Internet has become an essential multi-dimensional global communications resource. Yet the Internet in many senses is still only in its infancy, with a tremendous potential yet to be realized. That potential will come to fruition as the Internet becomes accessible to even more of the world's population, and as the diversity and functionality of the Internet's uses continues to multiply.
These developments will only heighten the crucial public role played by ICANN in the management and coordination of this resource.
ICANN has been created to manage the technical coordination of the Internet in order to safeguard its stability, growth and operation. Yet, as ICANN matures, and as its actual work comes into sharper focus, it becomes increasingly apparent that ICANN's functions inherently range well beyond the strictly "technical."
One of ICANN's ancestor organizations, the Internet Assigned Numbers Authority (IANA), under Jon Postel's supervision, portrayed itself as nothing more than a body engaged in technical coordination based on principles so scientifically objective in nature that its decision-making could be grounded on nothing more than the recognition and proclamation of "bottom-up" community "consensus." ICANN has generally sought to maintain this image of IANA, and has presented itself as a forum only for the resolution of technical issues, not for the deliberation of public policy.
But the veil of this image has now been dropped.
ICANN deals in principle with the coordination of Internet technical resources, but its decisions have much larger societal, economic and cultural implications. Although some decisions made by ICANN are purely technical in nature, many others just as clearly are not. Indeed, even its seemingly technical decisions are oftentimes inextricably intertwined with policy considerations. Other decisions are little more than public policy alone, whose outcome is not fundamentally determined by an underpinning of technical or engineering considerations, and whose resolution cannot realistically be thought to rest on "consensus."
These decisions in the nature of policy-making run across a range of issues that ICANN has confronted or surely will confront:
It is not necessarily wrong for ICANN to make such decisions. Indeed, many of these decisions have been thrust upon it, either as a matter of ICANN's basic charter, or because of a vacuum due to the lack of any alternative global decision-maker equally well situated to make such judgments.
But it is wrong for ICANN to make such decisions without the inherent institutional legitimacy to do so.
That legitimacy depends on a decision-making process for ICANN that is structured to incorporate a strong, diverse and global public voice, both in the analysis of policy questions faced by ICANN and in the ultimate decisions it makes.
The incorporation of this public voice into ICANN requires, as explained below, an integrated and multi-dimensional structural approach. ICANN must create and nurture a real at-large membership-an open and accessible worldwide public constituency that is invited and encouraged to participate in ICANN.
But this public membership must be given structure in order to be given a voice. It must be given the means for self-organization, for coordination, for aggregation and ultimately, for articulation of its diverse views. A secretariat and a guiding council for the At-Large Membership could assist in facilitating the participation of At-Large Members in the ICANN process.
Equally important, the membership must be given representation. The board of ICANN is at the center of ICANN's decision-making structure. No public voice will be adequately expressed without a strong and balanced presence on the ICANN board.
ICANN ignores or minimizes the public voice at its own peril.
It is widely recognized that ICANN is an experiment. It is a body almost without precedent-a global, self-organizing, non-governmental decision-maker entrusted with the management of a vital public resource.
There is much to be gained in the success of this experiment, but its fragility should not be underestimated.
There is much at stake-not just for the public at large in whether, and how, the Internet will evolve to its full potential as a global public resource, not just for national governments in reconciling a multiplicity of diverse and conflicting national public policy interests in a decision-making process that by its nature will have strong cross-border impacts, but also for powerful commercial interests who have much to gain or lose in financial terms from the decisions to be made by ICANN.
ICANN has been, and will continue to be, sharply criticized by those who disagree with its decisions. And ICANN needs to be robust in order to withstand its critics. Those critics-whether they are individuals, companies, NGOs, or governments-will attack ICANN's decisions-and ICANN itself-by claiming not just that ICANN is wrong in a given case, but more fundamentally, that it is illegitimate.
On the merits of a specific decision, ICANN can defend itself based on the persuasiveness of its reasoning. But on the deeper question of whether ICANN has the legitimacy even to make a decision of public policy, ICANN must ensure that it rests on solid ground. For if it does not, ICANN will continue to be vulnerable to challenge, both by private interests that may threaten to ignore or contravene its policy decisions, and by governmental interests that may threaten to retrocede the power to make such decisions of public policy back to traditional national or multi-national governmental bodies.
That is why the issue of ICANN's public voice is so important. And that is why the creation of a robust At-Large membership, structured to facilitate meaningful participation in policy-making, and given balanced representation on the board, is vital to the success of ICANN.
| 2.3 Concluding Comparative Themes | 3.2 The Failure of the Public Voice in the Current Conception of ICANN |
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