What Do the .XXX Disputes Tell Us About Internet Governance? ICANN's Legitimacy Deficit in Context

Abstract

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private, not-for-profit corporation incorporated under Californian law, which is responsible for managing and developing policies for the Domain Name System (DNS), a valuable global resource. As a non-state actor, with no clear source of authority under international law, ICANN has weak claims to formal legitimacy. To bolster its normative claims to legitimacy, ICANN has introduced internal structural and procedural safeguards to ensure transparency and accountability. Its structural safeguards, based on the multi-stakeholder model, entrench roles for governments, the private sector and civil society in the policy-making process. The privileged position given to government representatives in the Governmental Advisory Committee (GAC) enhances ICANN’s weak claims to legitimacy, but risks undermining procedural safeguards through undue government influence. ICANN’s procedural safeguards include requirements to act openly, transparently and fairly, and incorporate an independent review mechanism.

This article evaluates ICANN’s claims to legitimacy by means of a case study of the process for approving the controversial .XXX gTLD. An analysis of the disputes involving .XXX reveals flaws with ICANN’s structural and procedural safeguards. As this article argues, however, ICANN’s weak claims to legitimacy do not necessarily mean that DNS management and policy-making should be transferred to an international treaty-based organisation. In a time when concepts of legitimacy are in transition, with traditional concepts being challenged and new concepts yet to fully emerge, all international organisations must continually negotiate their legitimacy with networks of stakeholders. While ICANN’s weak legitimacy will result in ongoing challenges to its key management and policy-making roles, attention should focus on improving its mechanisms for accountability and transparency, as well as the organisation’s competence and effectiveness.

Keywords: Internet, governance, ICANN, domain name system