Lawrence White

[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.]

[Commentary] With the decision to transition away from US control, addressing Internet Corporation for Assigned Names and Numbers (ICANN)’s longstanding accountability and "legitimacy" issues becomes even more pressing. If ICANN is not accountable to the US government or to other governments, to whom will it be accountable?

The Internet Corporation for Assigned Names and Numbers, a non-profit, places a great deal of emphasis on obtaining input from the Internet "community," but in the end, it is ICANN's board that makes the decisions. That board has no external entities to which it is accountable. Meaningful accountability requires meaningful external checks, and virtually all major organizations are structured so as to be externally accountable. ICANN has no shareholders, members, or donors. The most direct way for ICANN to be externally accountable is to modify its governance structure so that board members, or at least a significant number of them, are accountable to external groups.

Our research shows that many organizations with coordination functions that are similar to ICANN's are governed by their direct users, who have a strong interest in the organization doing its job effectively. The direct users of ICANN include:

• "Registries," which are companies that coordinate gTLDs, such as .com, .edu and .org;
• "Registrars,” which register the second-level domain names that we all use, such as aol.com; and
• Regional Internet Registries (RIRs), which are responsible for distributing numeric Internet Protocol (IP) addresses that are needed for the Internet to work.

In sum, as part of this transition, the issue of ICANN external accountability urgently needs to be addressed. We believe that our suggested system of accountability to ICANN's direct users would be the best way to move to the next phase of Internet governance.

[Lenard is president and senior fellow at the Technology Policy Institute; White is a professor of economics at New York University's Stern School of Business]