ICANN -- A Regulator in Need of Antitrust Oversight

[Commentary] The pending transition of the Internet Corporation for Assigned Names and Numbers (ICANN) away from US government oversight has involved in-depth discussion about how to maintain an open Internet free from government control. What has received considerably less attention in these discussions is how ICANN has performed while under US oversight—especially as a regulator. This lack of attention can partly be attributed to ICANN’s insistence that, as its president Göran Marby said at a Senate hearing recently, “ICANN is not a regulator.” Perhaps not officially, but what ICANN actually does is indistinguishable from a regulatory agency.

ICANN, however, is a regulator with a difference. It is not a government agency, but rather a private-sector corporation that is and will continue to be subject to US antitrust laws whether or not its tie to the US government ends. The presence of antitrust oversight is a good thing. So, as the clock winds down on ICANN’s contractual relationship with the US government, it is important to ask how well ICANN is performing its regulatory functions. Using the standard criterion for regulation—promoting competition and consumer welfare—it would appear that the US antitrust agencies could provide ICANN some beneficial oversight.

[Thomas M. Lenard is a senior fellow and president emeritus at the Technology Policy Institute. Lawrence J. White is professor of economics at the NYU Stern School of Business.]