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50 Duke L.J. 187 (2000-2001)
ICANN and the Problem of Legitimacy

handle is hein.journals/duklr50 and id is 201 raw text is: 







ICANN AND THE PROBLEM OF LEGITIMACY

                         JONATHAN WEINBERGt


                                ABSTRACr

       Two years ago, an entity called the Internet Corporation for As-
    signed Names and Numbers (ICANN) was formed to take control of
    the Internet's infrastructure of domain name and IP address identifi-
    ers. Private parties formed ICANN at the behest of the U.S. govern-
    ment; the government is currently using its considerable resources to
    cement ICANN's authority over the domain name space. ICANN's
    role is one generally played in our society by public entities. It is set-
    ting rules for an international communications medium of surpassing
    importance. That task had historically been performed by a U.S. gov-
    ernment contractor in an explicitly public-regarding manner. ICANN
    is addressing important public policy issues. Further, it is implement-
    ing some of its choices via means that look uncannily like command-
    and-control regulation. If ICANN is to establish its legitimacy, it must
    be able to answer the charge that its exercise of authority is inconsis-
    tent with our ordinary understandings about public power and public
    policymaking.

       In developing structures, procedures, and rhetoric to establish its
    own legitimacy, ICANN has drawn on techniques that parallel the

Copyright © 2000 by Jonathan Weinberg.
    t Professor of Law, Wayne State University. I owe thanks to Karl Auerbach, Diane Ca-
bell, Michael Froomkin, Ellen Rony, Tony Rutkowski, Richard Sexton and, above all, Jessica
Litman. I presented an earlier version of this Article in Durham, N.C., on March 3,2000, and a
different, somewhat truncated, version, under the title Free Governance, at the Conference
on a Free Information Ecology in the Digital Environment, in New York, N.Y., on April 2,
2000.
       Disclaimers: I was a legal-scholar-in-residence at the Federal Communications Com-
mission in 1997-98, where I participated via an interagency working group in the U.S. govern-
mert's policymaking process regarding management of Internet names and addresses during the
period leading up to the release of the Green Paper. More recently, I was the co-chair of a
working group established by ICANN's Names Council to formulate recommendations regard-
ing the deployment of new generic top-level domains. The views expressed in this Article, how-
ever, are solely my own: I do not and could not speak for the U.S. government, the Names
Council, or the working group.

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