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ICANN: Governance & Authority

It is almost 25 years since the Internet was privatized by the U.S. government. ICANN was formed by Esther Dyson and Jon Postel as a California-based non-profit with the responsibility to administer the Internet. However, the U.S. government retained limited control, primarily through the Internet Assigned Numbers Authority (IANA). It was the revelations, in 2013, of highly classified National Security Agency (NSA) documents by Edward Snowden that sparked global concerns over the U.S. dominance of the Internet. In response, in early 2014, the U.S. announced its intention to transition the stewardship of the IANA functions to the global multistakeholder community and asked ICANN to develop a proposal for the transition. The NETMundial conference was followed with the Multistakeholder Statement that included consideration of the evolution of the Internet ecosystem—with a particular focus on the Internet Governance Forum (IGF), a UN body, and the IANA transition. In September 2016, the U.S. government relinquished its control over the network function by transferring the IANA control to the ICANN to allow foreign governments more power over the future of the system.

Questions about ICANN’s legitimacy were raised from its inception. It was pointed out that ICANN, as the only central point of the Internet, performs a number of public functions and exercises public powers. For example, it has the power to eliminate users, set the base price for Internet access, make a competition policy, and define property rights (trademark) at the global level. The increasing dependence of nation-states’ critical infrastructures on the Internet drove national security concerns. Critics argued that such public services are the monopoly of governments and their institutions, not a private non-profit organization. Hans Klein, Associate Professor at the Georgia Institute of Technology, in the mid-2000s examined ICANN’s position within the concept of non-territorial Sovereignty from both functionalist and legalist perspectives. “The basic insight of the functionalist literature is that governance institutions perform—and ought to perform—certain functions. Usually, these functions ensure stability and achieve coordination”, while the legalist literature focuses “on the right to govern”. With the increasing importance of the Internet as a critical system, arguments questioning ICANN’s political authority for the governance of a transnational and public service have found new audiences and gained momentum.

ICANN often avoided politics and justified its position by using functionalist arguments to maintain that its work is technical, not political, its mission is to ensure the global stability of the internet, and it performs coordinating and allocating functions that are administrative in nature. Moreover, it has fulfilled its mission by successfully providing a stable global internet for the last 25 years and has the unique expertise to do so. Additional justifications refer to ICANN’s representative structure and consensus building approach, which according to Jonathan T. Weinberg, are techniques used “to defend the legitimacy of the unelected federal administrative agency.”

However, within the current volatile geopolitical context, the functionalist argument may no longer be enough. According to Hans Klein, the original ICANN design was innovative and radical and could have passed the requirements of both functionalist and legalist legitimacy criteria for running a public service. The problem was that the ideal institutional design was never executed.

Moreover, a quarter-century down the road, ICANN has evolved, and the time has come to reevaluate ICANN’s political authority not just by the functionalist argument that is now stronger than ever but also on legalist grounds. Today, ICANN as a pioneer in the multistakeholder model of governance, has incorporated mechanisms that justify its legitimacy. Its board of directors represents various affected constituencies. It has gained recognition from nation-states and other peer groups and has performed its duties without outside intervention. Renée Marlin-Bennett in ICANN and Democracy, published in 2001, argues that ICANN structure “fell short of democratic ideals.” However, years later, ICANN has improved and today embodies principles of democratic governance through the fairness of its charter and by-laws, by ensuring autonomy of its supporting and advising organizations, by following a bottom-up and consensus-building policy making, and by being open, inclusive, transparent, and accountable. Not perfect, but still an impressive effort and advancement.

The key question is to what extent ICANN has been able to effectively communicate its sources of political authority with the Internet community. An independent study conducted by Hortense Jongen and Aart Scholte in June 2021 examined levels and patterns of legitimacy perception toward ICANN. It found that:

  • “ICANN often ranks alongside, and sometimes ahead of, those for other sites of global governance, both multilateral and multistakeholder.”
  • “average legitimacy beliefs toward ICANN hold consistently across stakeholder sectors, geographical regions, and social groups.”
  • However, “legitimacy beliefs decline as one moves away from the core of the regime, and many elites remain unaware of ICANN” and its role and activities.
  • “many participants in Internet governance express only moderate (and sometimes low) confidence in ICANN.”

The study concluded that “while multistakeholder global governance is not under existential threat, its legitimacy remains somewhat tenuous.” This conclusion is concerning because tensions in the geopolitical context are impacting internet governance, as seen by the growing trends toward fragmentation. When it comes to the multistakeholder model versus the multilateral model, the geopolitical divide is very visible and runs across democratic lines. It is an oversimplification to treat this as a bipolar dispute over liberal versus authoritarian approaches. What really matters is the “digital deciders” or “swing states”—countries that have not taken a firm position. The chorus of voices against the internet multistakeholder model of governance and its poster child ICANN is gaining momentum.

The time has come for ICANN to become proactive, take leadership to reach out to other like-minded internet governance institutions and form a united front to defend the multistakeholder model of governance. The 2021 study has already identified the gaps. ICANN must build capacity to increase its reach and communicate its message, especially in the swing countries, not just among end users but also among elites, diplomats, foreign ministers, policymakers, and parliamentarians, as they are the ones who represent their countries, influence its position and its legislative approach. ICANN’s multistakeholder model may not be perfect, but it is a successful experiment, and it is evolving, offering us some glimpses of how global governance could look in the future. As such, it is worth all our attention and efforts.

By Pari Esfandiari, President at Global TechnoPolitics Forum

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Comments

If it doesn’t evolve into democracy multistakeholderism will die and ICANN with it. Klaus Stoll  –  Apr 10, 2023 11:39 PM

Instead of: “The time has come for ICANN to become proactive, take leadership to reach out to other like-minded internet governance institutions and form a united front to defend the multistakeholder model of governance.”, isn’t it time for ICANN to move from multistakeholderism to democracy? I am alarmed when we talk about multistakeholderism as if it was a well defined, established and authoritative model for governance.  Multistakeholderism is a new and evolving model that has clear limitations and biases.

(Please allow me to refer on this point to the CircleID article by Prof. Sam Lanfranco and myself ” It’s Time for a Better Vision of Internet Governance: From Multistakeholderism to Citizenship” : https://circleid.com/posts/20220328-time-for-a-better-vision-of-internet-governance-multistakeholderism-to-citizenship . )

If it doesn’t evolve into democracy multistakeholderism will die and ICANN with it. ICANNs policy making has to move slowly from multi-stakeholders to democracy. The ICANN of the future simply cannot afford policy making dominated by special interests that are out of control as they lack universal and common to all values.

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Co-designer of the TCP/IP Protocols & the Architecture of the Internet

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