3.6.1.1 The Need to Limit ICANN's Mission

However ICANN resolves the issue of providing adequate public participation in its internal governance, it still must-in a clear, explicit and binding fashion-impose constraints on the scope of its mission.

The argument for some form of public participation in the internal governance of ICANN is dependent, in part, on the fact that any reasonable description of ICANN's current mission includes policy-making that ranges well beyond a mere technical coordination of Internet parameters.

In grounding the need for public participation on the fact of ICANN's policy-making, there is a tension with the widely shared view that ICANN's mission is, and should remain, highly limited. On the one hand, ICANN must provide for public participation because it inherently engages in a form of public policy-making, yet on the other hand, the scope of that policy-making should remain as constrained as possible.

One common fear expressed about ICANN is that it will gradually lessen its resistance to undertaking an even broader range of policy decision-making, and thereby extend its agenda into highly charged areas of substantive regulation of the Internet, such as content regulation, privacy, speech protection, taxation and other such matters. Yet ICANN was never conceived of as an organization to make these sorts of broad governance decisions for the Internet, and its organizational model-even with the changes we propose-does not provide a level of global inclusion, representation and accountability sufficient to support such broad policy-making.

This fear is fuelled by a concern that pressures will be brought on ICANN to assume responsibility in these and other similar areas because there is no alternative forum for the global resolution of these controversial questions of Internet policy. ICANN may be pressured to fill the vacuum. Further, there is a well-recognized tendency for organizations to succumb to "mission creep," and to extend their jurisdiction bit by bit into related areas. In ICANN's case, this kind of mission creep would almost inevitably embroil it in matters of even more overt policy-making than it has ventured into to date.

For some, these fears are heightened by proposals that there be some strong form of public participation in ICANN's internal governance, particularly in the form of elections for its board. The fear is that elections for ICANN's board may make it look like a legislature, and then the board may start to think of itself as a legislature, and in particular, as having the public legitimacy to undertake a decision making role on broader questions of substantive policy. In other words, the concern is that "too much" legitimacy could be conferred on ICANN if it addresses the need for public participation, with the result that others will start viewing ICANN, and ICANN will view itself, as freer to engage in forthright and unbounded policy making.

This is a real concern, and we do not diminish it. But there are three responses that should be considered as well.

First, if the concern is that ICANN may be tempted to abuse its legitimacy, it is a poor answer to state that it should therefore be kept illegitimate. In other words, ICANN engages in a bounded policy-making now, within the mostly respected confines of its current mission. For the reasons stated above, it is necessary to base its current policy making on some form of public participation. The fear that ICANN may extend its policy making to additional areas should not be used as an excuse for blocking the legitimacy ICANN needs for what it actually does now.

Second, some believe that a stronger public voice in ICANN's decision making will retard rather than accelerate any impulse within ICANN to extend its jurisdiction. The public voice may well serve as a check on internal pressures to extend its mission.

Finally, and most importantly, ICANN should address the question of its mission creep directly, effectively, and independently of the need to provide for public participation in its internal governance. The suggestion has been made repeatedly that ICANN find a way to constrain its jurisdiction in a binding fashion. ICANN should directly confront the reasonable fear that it will venture into an even broader policy agenda than it now does.

The limitations currently in ICANN's bylaws do not effectively serve this purpose, both because ICANN has shown a distressing tendency to amend its bylaws casually, and because there is little public confidence in the restraints that already exist. ICANN needs to address this problem squarely, and in so doing, to lessen the fears that it will abuse the very legitimacy it needs to gain. In fact, it is essential to ensure that ICANN's powers remain limited in order to ensure that it remains legitimate.

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