A Constitutional Solution for Internet Governance

Abstract

Internet governance has long been troubled by an unresolved problem. Its dominant organization, the Internet Corporation for Assigned Numbers (“ICANN”), suffers from inadequate accountability. ICANN holds the exclusive authority to manage the Domain Name System (“DNS”) that enables the Internet to function as a global network, and that authority is exercised by a Board of Directors whose powers are virtually unconstrained. ICANN’s exercise of unconstrained power over the Internet DNS is associated with a conspicuous gap between the accountability ICANN needs and the accountability it delivers. ICANN needs sufficient accountability, at least, to honor its written commitments and to satisfy its stakeholders’ expectations. Unfortunately, ICANN’s performance falls short in both regards. This article proposes to resolve ICANN’s longstanding predicament by describing a strategy to strengthen its accountability from within. Because its accountability gap arises from the absence of any mechanism binding the ICANN Board to act within its authority and consistent with its commitments, ICANN should adopt a standard of accountability that holds its Board answerable through procedures independent of it and binding on it. The Board’s unconstrained powers present the issue of power beyond right, the quintessential problem for constitutional law. For that reason, traditional principles of constitutional government offer a promising means of placing the Board’s powers under effective control. The article concludes that a written charter enumerating and separating the Board’s powers, a declaration of stakeholder rights, and an independent tribunal with the authority to issue decisions binding on the ICANN Board should be adopted through a ratification process that includes representatives from every sector of ICANN’s global stakeholder community.

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