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Technology, Contracts, and the Internet: Private Governance for Global Communications
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Finally, and perhaps most importantly, I examine whether this new system of regulation is legitimate. Although any assessment of absolute legitimacy is problematic, ICANN clearly lacks most of the common mechanisms to ensure representation of relevant views, accountability to outside parties, and transparency in its operations. As a result, the organization’s continued existence depends on its success in global power politics. It seems likely that its organizational form will continue to evolve until powerful interests reach a stable equilibrium and embody that equilibrium in ICANN’s institutional design. ICANN could also fracture or fail if a rival institution should be able to win the support of sufficient number of influential parties. In other words, ICANN’s lack of legitimacy makes it vulnerable to rather crude power politics. ICANN is significant not only for the Internet but for global governance generally. As an emerging new institutional form it can be characterized in three ways, depending on the significance accorded the roles of the US government and the private corporation. The first view emphasizes US hegemony. Here, the private corporation can be understood as the mere agent of the US through which the US embodies its commands in contract law so as to circumvent other nations’ sovereignty. US global hegemony is achieved through private law. Second, ICANN may be characterized as a semi-independent regulator in which powerful private entities make global rules for cyberspace. In this view, the US possesses unique veto rights but does not really control ICANN. Third, should the US act on its public commitment to grant ICANN its independence, ICANN would represent a new kind of private sovereign. In a manner similar to how the private International Olympic Committee controls those global games, ICANN would control cyberspace.
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Finally, and perhaps most importantly, I examine whether this new system of regulation is
legitimate. Although any assessment of absolute legitimacy is problematic, ICANN clearly
lacks most of the common mechanisms to ensure representation of relevant views, accountability
to outside parties, and transparency in its operations. As a result, the organization’s continued
existence depends on its success in global power politics. It seems likely that its organizational
form will continue to evolve until powerful interests reach a stable equilibrium and embody that
equilibrium in ICANN’s institutional design. ICANN could also fracture or fail if a rival
institution should be able to win the support of sufficient number of influential parties. In other
words, ICANN’s lack of legitimacy makes it vulnerable to rather crude power politics.
ICANN is significant not only for the Internet but for global governance generally. As an
emerging new institutional form it can be characterized in three ways, depending on the
significance accorded the roles of the US government and the private corporation. The first view
emphasizes US hegemony. Here, the private corporation can be understood as the mere agent of
the US through which the US embodies its commands in contract law so as to circumvent other
nations’ sovereignty. US global hegemony is achieved through private law. Second, ICANN
may be characterized as a semi-independent regulator in which powerful private entities make
global rules for cyberspace. In this view, the US possesses unique veto rights but does not really
control ICANN. Third, should the US act on its public commitment to grant ICANN its
independence, ICANN would represent a new kind of private sovereign. In a manner similar to
how the private International Olympic Committee controls those global games, ICANN would
control cyberspace.
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