Who Rules the Net? Internet Governance and Jurisdiction

By Adam Thierer; Clyde Wayne Crews Jr. | Go to book overview

12
Structured to Fail: ICANN and the
“Privatization” Experiment
Harold Feld

Introduction

In July 1997, as part of its “Framework for Global Electronic Commerce,” the Clinton administration issued a directive to the Department of Commerce requiring it to “support efforts to make the governance of the domain name system private.” 1 This command should have seemed odd, since the governance of the domain name system had been private (albeit supported by federal money) for years. Further reading, however, revealed that the Clinton administration did not intend to cut the domain name system loose from regulation and permit private markets to operate. It didn't simply wait for the government contracts to expire and allow the private actors to operate in a free market. Instead, the Clinton administration further instructed the Department of Commerce to “create a contractually based self-regulatory regime” with the specific policy objective of addressing potential conflicts between domain name usage and trademark laws on a global basis.” 2

More than a year later, the Department of Commerce entered into a memorandum of understanding with the Internet Corporation for Assigned Names and Numbers, or ICANN—a nonprofit corporation ostensibly formed independently by the “Internet community” but in fact a result of a compromise mediated between opposed factions by the Department of Commerce. Hailed by its supporters as an experiment in privatization and industry self-regulation, it was, in fact, none of those things. As described by Milton Mueller and others, 3 ICANN represented a compromise between the Department of Commerce and various interest groups. Its primary purpose was not to privatize the management of the domain name system, but to centralize its control under the rubric of “stability.” While this proposal met resistance, and failed to satisfy many significant players, the lack of any alternative plan supported by a significant party

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