ICANN and the Concept of Democratic Deficit

The Internet Corporation for Assigned Names and Numbers (ICANN) is an institution besieged. It has endeavored to be democratic but its attempts to do so have been disastrous. The typical explanation for this is that the problem is with ICANN: it fails to meet its democratic obligations. My view is that the problem is with our understanding of "democracy." Democracy is an empty concept that fails to describe few, if any, of our genuine political commitments. In the real world, the failings inherent in "democracy" have been papered over by some unusual characteristics of the physical political process. However, in online trans-national institutions like ICANN, democracy is exposed as a poor substitute for a number of other conceptions of our political commitments., This Article seeks to articulate these political commitments and to explain why democracy and ICANN are such a poor mix. It begins by charting the rise of ICANN and its attempts to be democratic. It then explains why democracy is an empty shell of a concept. It then explores some features of democracy and ICANN, explaining why the online world exposes limitations in implications * Robert F. Irwin IV Term Assistant Professor of Legal Studies, Wharton School, University of Pennsylvania. E-mail: [email protected]. I am indebted to Michael Froomkin and Ed Rubin for invaluable advice, comments, and ideas. The usual rider applies. To some extent I will be defending the indefensible (viz ICANN) and so I disclose that I am a panelist for the World Intellectual Property Organization (WIPO) in Uniform Domain Name Dispute Resolution Policy (UDRP) cases, which is an adjudication process administered (at some remove) by ICANN. This tenuous connection aside, I have never had any connection whatsoever to ICANN, its administration, or its members.