(Page 19 of 34) - Technology, Contracts, and the Internet: Private Governance for Global Communications authored by Klein, Hans.

PART IV: ICANN

Having reviewed the DNS we can now turn to the Internet Corporation for Assigned Names and
Numbers (ICANN). Created in 1998 and still evolving at the time of this writing, ICANN
realizes the governance potential in DNS, leveraging Internet addressing to achieve global
governance. Not only has it created the capabilities for regulation, it has even employed them:
in 1999 ICANN promulgated global public policy that defined intellectual property rights in
domain names. In what follows I identify the specific features of ICANN by which it realizes
authority, jurisdiction, law, and sanction.

I begin by setting the historical scene. By the late 1990s the DNS had come under severe stress
from a variety of sources. The Internet had rapidly outgrown its original institutions, most
notably the very personal nature of IANA, whose legitimacy was based on the reputation of one
man. Should something have happened to Jon Postel, IANA could have become unstable.
Another source of stress arose from entrepreneurs wishing to compete with NSI’s monopoly:
they began proposing alternate name spaces, new TLDs (e.g. .web), and independent registries
(Mueller, 1998). This threatened to fragment the name space. The global nature of IANA was
another issue. The United Nations’ International Telecommunications Union (ITU) became
involved and sought to assume authority over the name space. National governments and the
European Commission became interested, too; they perceived a threat to their sovereignty from
US control of this new global information infrastructure. Disputes over sovereignty and
jurisdiction were heating up. Intense conflicts also began to emerge over domain names that
matched trademarks (e.g. coca-cola.com). The United Nations’ World Intellectual Property
Organization (WIPO) and US interest groups applied intense political pressure to install
trademark regulations in domain names (Shaw, 1997). Making this political mix all the more
volatile was that these conflicts developed in “Internet time”; every passing month witnessed
exponential growth in the size of both the network and the political stakes.

The process by which the research community, trademark interests, communication businesses,
and national governments came together to create a new institution to replace IANA is
documented elsewhere (Mueller, 1999; Klein, 2001a). Here we are interested in the product of
that long and contentious process: ICANN. In the following institutional analysis I dissect a
snapshot of ICANN, as it existed around year 2000.

ICANN is best understood as a set of semi-autonomous institutions. That set includes not only
ICANN as a corporation but also some external entities like a committee of national
governments and the TLD administrators. To distinguish ICANN-the-set-of-institutions and
ICANN-the-corporation, I refer to the former as the “ICANN system” and the latter simply as
“ICANN.”

The four mechanisms of governance are mixed deep in ICANN’s administrative system and so
can be difficult to identify. In what follows, I analyze ICANN's features in terms of their
governance-related functions. First I focus on how ICANN realized mechanisms for authority
and jurisdictions, and in the following section I focus on the mechanisms for policy and
sanctions.

Authority and Jurisdiction
The new ICANN corporation replaced Jon Postel as the policy authority over the root. ICANN
solved the problem of stability: a person was replaced by an institution, so that the IANA could
function independently of any one individual. ICANN also partially solved the problem of inter-