Participation and representation are widely accepted governance values and are based upon the concept that those who are affected by decisions or policies initiated by the relevant bodies should participate or be represented in the policy making processes. Participation creates empowerment and empowerment yields a sense of collaboration. The more comprehensive the level of participation, or the more inclusive the level of representation, the less likely that those subject to a resulting policy will consider that policy unfair or illegitimate.
The appropriate structure of internal governance for ICANN is therefore largely a question that depends in important part on two related threshold questions: what is the essential organizational character of ICANN? And what is the essential nature of its mission?
The relationship among these questions arises because, to the extent that ICANN functions as a public or quasi-public entity that engages in the formulation of public policy about the Internet, i.e., decision-making that has broad impact on the general public, then the legitimacy of ICANN depends, at least in substantial part, on having some public voice as an important part of the structure of its decision-making.
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 indeterminacy of the underlying question of 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 organized in the United States as a private, not-for-profit corporation. In this sense, its structure is the same as other corporate entities with strictly "private" effects on society. Yet ICANN was formed through contract with a U.S. government agency (an arbiter of "public" authority, at least in the U.S.), and 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 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 [ 4 ] 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 administration system that mirrored its trans-national quality.
This goal could have been achieved by a transfer of functions to a multi-lateral quasi-public entity such as an international treaty organization. But instead, ICANN was created 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.
But 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 inevitably thereby 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 refer to it as "the company," a reference they increasingly use, that is a subtle linguistic attempt to stress the private, corporate nature of ICANN, as opposed to its public character. And of course 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 two years. 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 --which provides the best basis for assessing the character and mission of the organization.
In the first analysis, it is important to take account of ICANN's overall mission, which is to manage the DNS and ultimately, the root server system. The DNS is a fundamental operational attribute of the Internet. And of course the operation of the root server system is at the core of the Internet in an important sense it is the Internet. In this regard, the role of ICANN in managing the DNS and the root server system is central to the good functioning of the Internet.
This of course makes ICANN tremendously important to the worldwide public at large. As the Internet has become more pervasive, more international, more accessible and more multi-faceted, it has taken on the character of a global public resource. The "custody" and "trusteeship" of that resource the management of the policies that determine the functionality of the resource certainly take on the characteristic of serving a public or quasi-public role.
Indeed, it is ultimately the public at large which has the greatest stake in those policies because it is the public that is the end user and beneficiary of the Internet. Issues which go to the accessibility and functionality of the Internet are questions in which there resides an inherent public interest because of the increasingly pervasive utilization of the Internet in a broad set of applications commercial, governmental, educational and inter-personal -- that cut across the spectrum of daily global life at the individual level. As such public participation within ICANN is a prerequisite to ensure that the public interest' is taken into account when implementing its mission.
The argument made contrary to this broad view of ICANN is not to deny the importance of the Internet, but rather to minimize the importance of the role ICANN plays in regard to the Internet. Under this argument, ICANN's role or mission is not to "manage" or "regulate" or "govern" the Internet, but rather to serve merely as a technical coordinating body.
Indeed, much (but not all) of ICANN's work neatly fits this more modest description. And it is assumed by those who make this argument that "technical coordination" is a function so arcane or inaccessible that it should be exercised by experts whose decisions are dictated and thereby narrowly bounded -- by the objectivity of the science or technical reasoning involved, rather than by unbounded discretionary policy-making. Within this bounded sphere of technical reasoning, it is argued, legitimacy is sufficiently conferred by expertise alone, and there is simply no need for a broader reference to public will or public accountability in order to ground the decisions made.
There are at least two major flaws with this argument.
The application of expertise to decisions that affect matters of public interest does not thereby insulate those decisions from the need for public accountability. To claim a decision is "technical" does not mean it can be made without oversight that protects the public interest in the decision being made correctly.
Much of what governments do is highly "technical" from operating air traffic control systems to predicting the weather -- and at least as arcane as what ICANN does. Those functions are performed by experts, but experts who are ultimately subject to public control through elected officials. If experts running the air traffic control system repeatedly fly planes into each other, there will certainly be public pressure brought to bear on elected officials who will undoubtedly in consultation with new experts replace those who have not performed well. If such steps are not taken, the public will likely replace the officials who fail to act. Thus, to describe a function as "technical" does not in any important way address the question of whether it pertains to a matter of great public interest, and therefore whether there should be public accountability for, or a public voice in, the management of that function.
The second flaw in the argument based on "technical coordination" is more important. Even though much of what ICANN does can be characterized as "technical coordination," it is sometimes nonetheless inextricably intertwined with policy-making of precisely the sort that requires a grounding in some form of public legitimacy. Further, some of what ICANN does is simply and forthrightly policy-making that has no particular patina of technical expertise to it. Several of the most important decisions that ICANN has made since its founding are exercises of discretion of the kind typically associated with public agencies. Three examples illustrate this point.
First, arguably the most important (and certainly the most publicly visible) decision made by ICANN to date was the award of new gTLD's. Both the decision on how many gTLD's to award, and then the selection of the chosen gTLD's themselves, were exercises in discretionary policy making, not technical coordination. The ICANN Board's discussion on the selection of new gTLD's had all the characteristics of a public agency exercising subjective policy judgment in the application of its values about how to best serve the public interest in expanding the DNS. In this instance, the judgments were based not simply on how best to run a "test" of the introduction of new gTLD's, but rather on which new domain names would best serve public purposes. There is nothing improper in that basis for judgment indeed, it is arguably the correct basis for judgment -- but it highlights the need for the decision-makers to have some underlying legitimacy to make inherently value-laden policy choices, particularly where they result in the granting of an economically lucrative franchise to a quasi-public resource.
A second example of a policy-type decision making is the creation of the UDRP process. ICANN established this process in order to create a tribunal for resolving issues relating to the protection of intellectual property rights in the DNS. In establishing the UDRP process, the ICANN board has responded to the claims that it should protect, or provide a mechanism for protecting, the rights of trademark holders. Making this judgment was itself a substantive policy decision, and certainly the design of an adjudication process involved a host of policy determinations about how to balance the rights and interests of Internet users and trademark holders, how to allocate the costs of dispute resolution, and how to establish a means for fair, legitimate and supposedly neutral adjudication. None of these are "technical" questions. All involve policy judgment based on some underlying conception of whose interests should be protected, to what degree and how.
Finally, even though ICANN does not conceive of itself as a regulatory body, it has in fact engaged in a process of regulation by contract, which has resulted in a range of substantive policy making not through the issuance of "rules," but through the drafting of private contracts. For instance, in recently renegotiating its contract with VeriSign, ICANN argued that modifying the contractual terms of its relationship with VeriSign would promote competition in the DNS marketplace. That may be a legitimate, even desirable, goal for ICANN to implement, but a policy of enhancing competition a kind of policy typically implemented by a government, not by a private company -- depends on judgments about the nature of the marketplace and the degree and form of competition that will best serve the public interest.
Similarly, the contracts ICANN has negotiated with the registries that were awarded the new gTLD's contain a host of regulatory provisions about the permissible uses of the new domain names. These contractual rules in many instances go well beyond what is strictly required to implement a test of expanding the DNS. Such collateral policy goals of ICANN may be laudable, certainly they are controversial, but in either event they again illustrate a kind of substantive regulatory policymaking that ICANN engages in through contract. These three illustrations the award of new gTLD's, the creation of the UDRP process and the imposition of regulatory-type controls through private contracts are among the most important, visible and controversial actions that ICANN has taken. None of these actions can be accurately described as "technical" or arising from mere "technical coordination" of parameters necessary for the operation of the Internet.
Instead, each involved overt policy making decisions about how to facilitate the development of the Internet as a public, global resource, about how to shape the marketplace for key Internet services to best create competition, and about how to balance the protection of private economic rights against claims of free speech in the management of the DNS. All of these decisions must be based on some underlying substantive conception of how the DNS, and hence the Internet, is to function best. And to the extent that the Internet is, or will become, a global quasi-public resource, these decisions must at a deeper level involve some conception of the general public good. For that reason, these decisions all of which lie within the sphere of authority that ICANN claims to have resemble the kinds of decisions typically made by public agencies.
Thus, the minimalist account of ICANN as a merely technical coordination body that is not engaged in broad policy-making affecting matters of the public interest is, at the very least, an incomplete description of the organization. Even though ICANN is in the form of a private company, its functions, at least in part, appear very much to embody the consideration of public issues. Thus, even as a unique and experimental hybrid entity, its legitimacy to resolve these issues must be based on a process that reflects some reference to the public will or public accountability.
There is an additional reason this is true as well. In many ways, ICANN rests on unstable ground. It is a voluntary association which has the ability to implement its decisions only to the extent that those decisions are perceived as legitimate by the relevant community governments, private companies and Internet users.
ICANN has little in the way of coercive authority through which to enforce its decisions. Thus, legitimacy for its decision-making is particularly crucial for ICANN since it is constantly in danger of being discredited or ignored. ICANN ultimately has no ability to stop the creation of alternative root servers with alternative DNS systems. The voluntary adherence by the worldwide Internet community to its decisions will likely continue only to the extent those decisions appear to be based on a decision-making process that is fair and legitimate.
Nor can ICANN "borrow" the legitimacy of another institution, or of any government, since ICANN is structured as a freestanding private entity. The legitimacy of its decision-making must be generated by its own internal governance procedures. And if it fails to do so, it runs the risk of being deemed irrelevant, or inviting governments to take control of it or to regulate it in the name of imposing governmental policies of consumer protection, competition or other nationalistic goals.
Finally, it is important to recognize one limiting principle of overriding importance: that however ICANN resolves the issue of how to provide for 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, even with public participation 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 more forthrightly 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.
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 kinds of 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 to date ventured.
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. Whether this is by amending its Articles of Incorporation, by writing a limitation into its bylaws that is not easily altered, or by issuing some strong "prime directive" that limits its jurisdiction, 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.
| 1. The Public Voice, Legitimacy and ICANN | 1.2. ICANN's History and its Commitment to Public Representation |
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