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12 Cardozo J. Int'l & Comp. L. 409 (2004)
The ICANN Experiment

handle is hein.journals/cjic12 and id is 415 raw text is: THE ICANN EXPERIMENT By Susan P. Crawford' The Internet Corporation for Assigned Names and Numbers (ICANN) is a private California not-for-profit corporation that has taken responsibility for allocating domain names and IP ad- dresses. In October 2002, at its meeting in Shanghai, the ICANN Board of Directors voted to adopt bylaws that allow the Board to create policy for the generic top level domains (.com, .net, .org, .biz, and others). How can we best understand ICANN? What is the theory that allows ICANN to tell actors in the domain name system (registries, registrars, and registrants) what to do, and persuades governments to defer to its decisions? Three familiar models of governance are frequently used in describing ICANN: (1) ICANN can be understood as a forum for decision-making about public resources, and can be legitimate only if both the pub- lic is suitably represented in ICANN's structure and it operates transparently and accountably (the democracy story); (2) ICANN is a central body of experts that can be relied on to make good decisions in the interests of the global Internet community after that community has commented (the Administrative Proce- dure Act story); and (3) ICANN is a narrowly confined technical coordinator whose legitimacy depends on its staying within this role (the expert coordination story). Each of these rationales is flawed. The democracy story does not make sense for ICANN because it requires that demo- cratic theory be divorced from its necessary framework. Demo- cratic theories focus on limitations on governmental power in a context in which a citizenship of those participating in a particu- lar regime is clearly determined by boundaries. Here, ICANN is purporting to make rules about a global online community that has no boundaries or limitations. The Administrative Procedure Act story has defects as well. ICANN has not been delegated specific administrative power and its decisions are unreviewable. Finally, the expert coordination story is clearly incomplete because it does not fit what ICANN actually has done and intends to do. 1 Assistant Professor, Benjamin N. Cardozo School of Law; Policy Fellow, Center for Democracy and Technology, Washington, D.C. Thanks to Alan Davidson and David Johnson. 409

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