Legitimacy and Internet Governance

Tamar Frankel & Kenneth Neil Cukier [1]

Abstract: The Internet's new governing organization, ICANN, can only succeed if its legitimacy is respected by the ever-growing community it serves. ICANN must earn that trust, which it so far has not done. Previously, the Internet's stability was assured by a fragile adherence to a single, centralized authority under circumstances that no longer exist, while the Internet's technical system makes it easy to bypass central control. Yet the different sources of legitimacy and history of Internet self- governance sheds insights into the ways ICANN can gain legitimacy. Only if it obtains legitimacy, can the institution remain relevant for a significant portion of the Internet community and prevent its dissolution, or a fracture of the global network.

I. Introduction

To understand the fragility of the Internet's central operations -- and the importance that legitimacy plays -- consider its precursor, the global telephone network.

A caller takes for granted that any phone can reach any other. But behind the scenes, the hundreds of telecommunications networks are stitched together not just by technical standards, but by political ones. Since the age of the telegraph, governments have devoted a sliver of their foreign ministries to negotiate international agreements on how networks will interoperate. In the vital area of telephone numbering, the matter is supervised by a United Nations-affiliate agency, the International Telecommunication Union (ITU) in Geneva. It's a question of formal politics and diplomacy.

The economics of telephony inherently lent itself to this sort of control. Because they are so expensive to deploy nationwide, telecommunications naturally fell under the aegis and funding of national governments in all but a few countries, such as the United States. The legitimacy of government authority to set policies was questioned. Telecom service was considered a public good and to be supervised by public institutions. Since governments built it, they set the technical and operational rules. Later, as telecommunications grew internationally, these policies were determined with other governments.

Similarly, the Internet. Its curious historical development matches the pattern of the phone system's evolution - but in precisely the opposite way, as a mirror's reflection. Despite original research funding by the United States government, the Internet was a private-sector-based enterprise spearheaded first by the academic and research community, and later by companies. As the network spread internationally, it interconnected with other private organizations, usually university computer science departments, and then with privately- owned Internet service providers.

An entire body of international telecommunications regulatory policies assured this private sector approach, albeit inadvertently. Data-networking was not considered a "basic service" or "public" telecommunications and so stood outside of government's scope. In fact, throughout the 1970s and 1980s the telecom establishment - composed of large, mainly state- run, carriers and telecom ministries - actually refused to acknowledge, and thereby "legitimize," the Internet's technical specification, TCP/IP, in favor of their own proposed data-networking standard, called OSI. The Internet was rejected by the public authorities, and isolated. But it also flourished, because it was embraced by the private sector.

Deployed privately and shunned by the telecom world's policy-setting bodies, the network developed its own institutions to coordinate its own technical actions instead of deferring to existing policy-setting bodies anointed by government. As such, these nascent institutions existed outside the realm of traditional public policy makers. Just as governments claimed control of the telecom system because they have a sense of ownership because they funded it, so too Internet's self-governing institutions and private-sector groups invested in the system of interconnected networks. At the time, the term "private sector" meant non-governmental; it did not exclusively suggest commercial firms, as it is misunderstood to mean today in this context.

However, unlike the telephone system's formal governing structure, the Internet's policy- setting bodies were never established in law. Unlike government, which has a quasi-monopoly on serving the public interest within its geographic borders, the international Internet community of users had to battle each other for influence and control. The concept of legitimacy for an Internet governing institution was always a delicate issue, since it was built on the goodwill of users, who were at any time free to leave the community and set up new institutions. There was no force other than self-interest to hold the parties together. If their interests changed, so too could the existing governance structure.

II. Internet Self-Governance, Old and New

Fortunately, the debates that bedeviled the Internet's central policy-making bodies were largely over technical matters; a constant power- struggle among specialists who shared the same values and objectives. The Internet governance hierarchy was based on an intellectual elitism, as befits the mores of the research community that participated; decent ideas and good researchers rose to the top, while technically inferior designs and minds were delicately sidestepped.

The governing institutions that handled issues like technical standards, and special routing number assignments, were open to participation of any one, although the participants’ of influence was based on sound engineering judgement. Members of the small, homogenous community of engineers willingly (albeit sometimes disgruntledly) accepted the legitimacy of the Internet's central coordinating institution, which came to be known as the Internet Assigned Numbers Authority (IANA). They did so because they participated in the process, and also because they ultimately needed to cooperate and adopt a single standard, since it was in everyone's broader self-interest to do so.

However in the mid-1990’s, as the network grew in scale and changed its nature, this governing system was challenged by an ever-increasing number of new users. These new users had different backgrounds and different interests from those of the Internet's original founders who occupied the seats of power. Additionally, the issues - such as the names of Web sites and the routing numbers for Internet host computers - became of great economic and political concern. Legal issues played a dominant role, since the domain names, the addresses used to identify sites, dovetailed with intellectual property rights, something that technical engineers have no experience in mediating. Economics took on an increasingly important role, because the Internet's underlying numbering system is in effect a scarce resource that must be husbanded, and, as the Internet's commercial importance grew, there was greater need for the valuable addresses.

As a result of these internal tensions, the Internet's self-governing institutions like IANA turned to the off-line world of governments to attain legitimacy. In 1996, the then-governors of the Internet created the International Ad Hoc Committee, and chose representatives from the ITU and the World Intellectual Property Organization to participate. The attempt failed, due to a perceived lack of legitimacy. The U.S. government stepped in to resolve the issues of control because it still funded, if only slightly, the institutions that governed the Internet as a vestige of the Department of Defense research grants that gave it birth. In an ironic reversal that echoed the Internet's heritage, the U.S. government then turned back to the private sector - by now embodied in the commercial sector, the prime driver of Internet developments -- to gain legitimacy for the policy the government would adopt: The October 1998 creation of the Internet Corporation for the Assignment of Names and Numbers (ICANN).

ICANN rose like Aphrodite from the sea, with the blessing, but not the control, of the U.S. government. Today, it is an institution vested with powers yet lacking in full legitimacy. Unlike the telephone system's central policy-setting institution that is legitimate by virtue of governmental power, the Internet's central authority was established by "stakeholders" from the private sector to the represent the vast interests of the Internet community - and has no claim to legitimacy other than as being deemed IANA's successor by the U.S. government.

Apart from a few intimately involved persons, the event left little mark. To be sure, the New York Times and other publications published a handful of stories about ICANN, and Congressional committees held hearings on the subject. But by and large the public is only slowly becoming aware of the existence of ICANN and its impact on Internet users, e-commerce, large and small businesses, and on governments around the globe.

While most of the discussions about the new institution has focused on the question of its authority (since most of the initial threats to the institution have been legal ones), the notion of its legitimacy has received too little attention. Yet that marks an ignorance of the history of the Internet's development. It could ultimately bring the downfall of the institution, since legitimacy was always at the heart of the Internet's ability to loosely hold together the autonomous actors that comprised it. Unless ICANN is viewed as legitimate and gains a strong following, the Internet's technology makes it very easy to bypass its control. There are even economic incentives for commercial firms to attempt just that.

This paper, then, examines the central challenges that ICANN faces by focusing on legitimacy: How the Internet's technical structure relies on it, what are its sources in society more generally; why it is important to ICANN; and finally, recommendations on how ICANN can attain it. Before we approach these matters, however, a brief overview of the Internet's architecture, which ICANN oversees, is necessary.

III. Internet Architecture and the Need for Legitimacy.

Although designed as a network intended to survive a nuclear war, the Internet's underlying technical structure is remarkably fragile, but for political, not technical reasons. In three main areas - names, numbers and protocols - it relies on the goodwill of individuals, not the robustness of computers, to work. Without a central body to coordinate technical policies, the Internet cannot function universally. And unless that institution has legitimacy to act, it is extremely easy for the network engineers to sidestep it, and create a sort of parallel system.

Indeed, a paralleled system has been tried before, for example in the mid-1990s by a company called Alternic (which minted its own domain names that were only readable on a handful of computers). No such system has ever attained a large enough support to significantly bypass the established operation of the Internet, nor ICANN's policy-making forefather, IANA, led by the late Jon Postel. However, the inherent vulnerability is always present. This makes ICANN's legitimacy imperative to preserve the Internet's viability.

To fully appreciate the importance of ICANN one must understand some basic (and not very complicated) aspects about the structure of the Internet. The Internet allows people and entities to interconnect without a central guiding hand. Unlike the telephone system, there is no central exchange. Messages need not follow a pre-ordained route, but find their destination by hopping from one station to another, seeking the most efficient path. However, key aspects must be centrally coordinated for the Internet to function universally.

The first aspect is the domain names - the most apparent thing for users. Although sites on the Internet do not actually need the alphanumeric monikers like "harvard.edu," they nevertheless represent the most common way sites are accessed and email sent, since they make the system user- friendly by replacing the routing numbers that the computers use to transmit the data. These domain names are structured in a hierarchical way - the "top level" like today's popular .com or .de for Germany -- are established in the domain name system that ICANN oversees. The lower-level names themselves, such as the "harvard" under the "edu" are allocated to users by independent registries of the higher domain names. Names are a vital resource that must be managed carefully, since once one person has registered a name, no other person can have it.

These names are linked to the second area that must be centrally coordinated, the Internet Protocol address number used for routing. These IP addresses are read by the computers, and are the essential ingredient for the Internet to locate the destination sites. The addresses are overseen by ICANN and allocated by a series of regional registries in the US, Europe and Asia. Additional registries are being developed in Latin America and Africa. The addresses, however, must be managed carefully because if they are accidentally duplicated within the network, routers would not know in what direction to send the traffic, become confused, and not transmit the data.

Thus, in both the names and numbers, no two persons or computers may have the same designation. The way that the names and addresses interact, via so-called "root namesevers" are under the administration of ICANN as well. Clearly, the entity that controls the allocation of names and numbers has significant control over access to the Internet. As the Internet has become an increasingly important means of communication, this control represents power, money, and resources - with political as well as economic consequences.

In addition to the names and numbers, a third area requires some central authority: The Internet's technical standards. The ganglia of interconnected networks that make up "the Internet," all must agree to follow similar technical parameters, called protocols. Not to do so, would result in chaos: The interoperability that exists among the different, private networks would be destroyed. The decision to accept standardized protocols is made by the administrators of each network, and must be acceptable to a sufficient number of actors to take effect. Yet the organization that sets these technical standards, the Internet Engineering Task Force (IETF), is also under the purview of ICANN.

Hence, the names, numbers and the protocols must be uniform and followed and are ultimately under ICANN's authority. Much is at stake. The stability of the system is crucial to businesses, users, and governments.

No Internet parallel naming and numbering system can arise and still be called the Internet. It would, in the parlance of network engineers, "fracture the Net," since it would break the universality of the Internet as a single system. Sub-networks on one network would need a gateway to connect to users on another network. This would pose a major technical disruption to the seamless service. However, there is no law or authority that can prevent a network from trying to create a parallel naming and numbering convention - only commercial incentives to follow an agreed, single system.

While some governments, such as France, would prefer to use international accords to legitimize ICANN's authority, and some consumer-advocate groups support the idea since public policy is intended to protect the public good, there is a general consensus that if government were to manage the naming, numbering and technical system, the Internet would die a "death by bureaucracy." Critics of government involvement point to the ITU, which functions as a quasi-cartel of the world's telecom companies. These companies shied away from technical innovations to protect their monopoly positions. They refused to formally acknowledge Internet protocols until only very recently. There is a fairly strong consensus - even among many governments -- that the private sector must manage the Internet naming system. Hence: ICANN.

ICANN depends on the community of network engineers to jointly agree to accept and respect the system. If one or two do not, and develop alternative naming and addressing conventions or non-Internet-compliant standards, then they will not be able to connect to the larger network, hurting their own users. That will have little effect on the broader Internet. However, if these actors can create a large enough support among other networks, perhaps as little as between one and five percent, then there would be a need for both networks to integrate - else users from one system would be shut off from the users on the other. That makes ICANN's authority subject to the will of a network administrators of the Internet, as an aggregate. In the early days until the mid1990s, that wasn't much of a problem. Dr. Postel came from that community - indeed, he was one of the first among them. But ICANN is an outsider. That makes the need to establish its legitimacy vital for its success.

IV. Legitimacy and the Politics of ICANN's Emergence.

ICANN's emergence and the appearance of its first board of directors merits a separate story. Basically, after years of wrangling, hearings, arguments and counter attacks, it was decided that a private non-profit California corporation will be the holder of the naming and numbering power. Here we mention only that the initial, interim board appeared last year and it was not clear how its members were chosen. That has raised fears among some members of the Internet community that ICANN is run from behind the scenes by a clandestine group exercising greater control. These concerns, however, have not threatened the system. Although every few members of the board have played a role in the Internet's founding and on the original Internet governance institutions under Dr. Postel, some did. That was enough to reassure the major networks and data engineers and convince them to continue to participate in the process, albeit cautiously. Although not officially, it is clear that many governments played a big role in founding ICANN.

Now formed, uncertainties loom about the legal structure of ICANN. The articles and by laws of ICANN have undergone some public scrutiny, and were subject to additional requirements by the Commerce Department. The Department then signed a contract with ICANN delegating to it some management powers over the naming and numbering system, but did not delegate the power completely and irrevocably. The board members are reputable and known persons, from different parts of the globe. However, ICANN is in a transition stage. It has not yet received the powers that the United States government hopes to transfer to it over the next two-year period, and that period can be extended.

One of the main conditions to such transfer of power is legitimacy. Unless ICANN gains legitimacy the United States government is unlikely to transfer all the delegated powers to it. Worse, if the U.S. government does so in the hope that the very act of endowing the institution with authority will infuse it with legitimacy, such a move could easily backlash. If critical mass of Internet networks interprets this move as the start of governments’ control of ICANN, and they would resist the action. That would ultimately harm the Internet's stability. Yet, unless ICANN gains legitimacy, other countries and power holders around the globe will not accept its leadership. And lead it must. If not, someone else must.

Most importantly, if ICANN does not gain legitimacy and the demand for names and numbers increases as it did in the past two years, it may be worthwhile for some players to try again what did not succeed before: To create their own top- level domain names, which would split the hierarchical structure of the root server system and create parallel Internets. It would be sort of a FedEx system versus a national post office, but with a big catch. It would be as if the privately-run FedEx used a different postal code than the "official" postal system, which would force both users and mailmen to be aware of two different systems. Some people predict that it is only a matter of time before this kind of fracture happens for the Internet.

The legitimacy of ICANN plays a crucial role in this development. In the final analysis, if ICANN does not exert a strong moral leadership, the issue may be decided not by the management of ICANN or the United States government or any other government. Rather, it will be decided by bright technical people, who object to the heavy-handed control of ICANN. Perhaps in the basement of their homes, they may recreate the Internet in a dual image. To some, they would be hailed as liberators in the manner of the reformation's Martin Luther. To others, they would be seen as anarchists, seeking to overthrow civil society. But what is certain, is that the smooth functioning of the Internet would be thrown into doubt.

V. What is Legitimacy?

ICANN therefore needs legitimacy in order to preserve the Internet. That raises the question of what is legitimacy. It is a difficult concept to completely pin down, but it can be described generally. The description hints at its vital importance. For instance, if something is legitimate it is considered "acceptable." Of course, legitimate does not mean legal. In fact, laws may not be legitimate. People may consider non-laws more binding than laws. Legitimacy is a feeling that a rule or a decision, or a person exercising power, should be followed-- because they are right and trustworthy. There was a time when children born out of wedlock were "illegitimate;" outside society's rules of what was right and decent. More importantly, such children threatened the property rights attached to birth. In a society built not on personal achievement but birth rights and duties, such children posed a serious threat. Thus it can be said that legitimacy is usually tied to the social order, to fundamental principles followed by the significant majority of the social group. One of the problems of ICANN is that the social group which presumably should follow ICANN's dictates is not yet defined. There are serious arguments as to what this group should be.

Legitimacy is also based on a clear understanding by the governed and followers of the objectives of the decision making power. In other words, if power is vested to impose rules on others, they will follow if they know, understand, and mostly agree with the objectives and the basis of the decision-makers' powers. Thus, another uncertainty concerning ICANN is the question of what its main objectives are, and who should follow its dictates. Is its objective to maintain Internet stability? Internet expansion? Internet fairness of allocation of resources? Is ICANN like a government governing the millions of users? Is it like an association of those who have a higher stake in the Internet infrastructure, such as the firms that are involved in registering the domain names, or the communications companies that manage the world's huge international backbone networks on which the majority of traffic rides? Or is it like an association of its largest users like banks and other commercial entities that conduct business through the Internet? Finally, is it like a government that affects some interests but not others, such as trademark owners?

There are no simple answers to these questions. But this ambiguity is the main cause of ICANN's crises of legitimacy. It forces ICANN into a position where it must try to appease all of these groups, even when their interests are mutually exclusive. As a result, ICANN suffers from internal contradictions, which raises unease among the stakeholders. They fear that their interests will be sacrificed to the interests of another group. This, in turn, further damages ICANN's attempt to earn legitimacy.

A brief taxonomy of legitimacy - along with its definitions and sources -- shows how vague, yet vital, the concept is, and the obstacles the Internet governance model has faced in its continuous bid for legitimation.

1. The Gods. Legitimacy involves two elements: Power exercised by one party, and acceptance or following by others. Historically, legitimacy was derived from the divine, from the Gods or God's laws, delivered by God's messengers. Therefore, what was legitimate depended on who declared it to be so. The queen was legitimate if the church recognized her as such. A child was legitimate (with enforceable rights) if born into legal (not common law) wedlock, with the blessing of the church or other religious orders. Law for much of history derived its legitimacy from the divine, rather than the values of the governed, who in the context of Internet governance would be called "stakeholders." It is notable that Jon Postel was regularly referred to as "god" by network engineers, since he exercised supreme authority and as the final arbiter, there was no mechanism for recourse to contest his decisions.

2. The Law. With the renaissance in Western civilization, faith and metaphysics were no longer legitimating. People had to be convinced before they accepted authority, and demanded justification for approval. At this stage, the institutions, the actions and the people who sought legitimation had to be examined, and criteria of legitimation had to be devised. This is essentially the Hegalian notion of law and its evolution, which he presented in "Das Rechts." In modern times, the basis for legitimacy has shifted to legality, and its source is the law. But not any law; only to a law produced by a democratic procedure. Legitimate process requires fairness and reasonableness. But in itself such process is not enough to earn legitimacy. Not every act is legitimate, even if it is not illegal. Related to the debate over ICANN, much of the initial drive by the U.S. government was simply to create a "process," for decisions to be made. However, it soon became clear during the negotiations in the summer of 1998 among stakeholders that even an open process could lead to an illegitimate outcome. Thus, law must be legitimate by substance as well as process.

If substance is not acceptable, law can lack legitimacy, as the classic example of Hitler's laws demonstrates. So it seems that legitimacy derives its power from higher rules than the rules of positive law on the statute books. Some believe that a higher authority can always bestow legitimacy on institutions, actions and people. But this technique for legitimation is too narrow, because legitimacy may be acquired without state authority. One example is the rules of international law that are mostly obeyed not because of fear of state's power, but because the rules are generally perceived to be right, just, and appropriate. The International Chamber of Commerce, a 70-year-old institution based in Paris, has long provided multi-national corporations services, including the International Court of Arbitration, that facilitate international trade, yet its only legal status is contractual among parties. Likewise, the summer 1998 meetings of the International Forum on the While Paper (IFWP), where stakeholders met to discuss the formation of what would become ICANN, were not legal in the sense of being required by law or having the force of law behind them. They were lawful, in the sense of being legally permissible. One can imagine a society in which there is no coercion, where people obey the laws because they agree with what all or most members believe is right. Illegal acts may be legitimate, as a rebellion against dictatorships. To found a new nation, the United States justified its overthrow of its British rulers in the 1770s on this very principle.

3. Morality. It seems that as we moved from the historical legitimation by religion and God's messengers, we have not completely abandoned the types of legitimate actions, institutions, and people that have been followed as legitimate for hundreds of years. Precedent and custom are ligitimation means that ICANN does not have. These were often representative of the good, trustworthy, benevolent, and honest. We have also not abandoned altogether the notion that legitimacy must be backed by effective enforcement. The state, however, plays only a partial role in enforcement. Other mechanisms are available to help enforce and acquire legitimacy, including group pressure, both by threat of exclusion and general approval, and help and support in need. In terms of Internet governance, the actions of Dr. Postel at IANA were treated as moral, since he was often said to have made decisions with "the best interests of the medium at heart." The community's mores and values also served to enforce his decisions. The central tenet of the Internet's small community of engineers was that connectivity is sacrosanct - a principle that is actually enshrined in the IETF's technical standards documents.

4. Reciprocity and Process. Another basis legitimacy is suggested by the philosopher John Rawls. Political legitimacy, based on the criterion of reciprocity says: exercise of power is proper only when we (1) sincerely believe that the justifications we would offer for our actions are sufficient, and (2) reasonably think that other citizens might also reasonably accept those justifications. In sum, he offers political legitimacy based on sincere reciprocal ability to convince. (This concept draws on Kant's famous test of moral behavior based on whether an act can be universalized, or done by everyone, without harm to society - which effectively damns a host of actions from murder to littering.)

Legitimacy in this context can be defined as an attitude or at most a process (rules of the game) with little focus on the substance. This approach allows inclusion of different people, actions and institutions, subject to democratic, fair treatment of all. It defines legitimacy as an attitude that results in a voluntary acceptance of other people, institutions or actions; acceptance, not necessarily identification or agreement. One person may say to the other: "Your action is legitimate even though I myself would never behave like that." Or: "Your argument is legitimate, although I do not agree with you because . . . ." Consensus by others legitimizes, but it is not necessary for legitimation. Similarly, the Internet's governing process was and is called "rough consensus." It judges the general feeling among participants to the process - and formal voting is verboten.

5. Homogeneous Grouping. There is a view of legitimacy that rigidly adheres to substantive norms and models to the exclusion of non-conforming others. This view was adopted by some theoreticians, especially in times of social turmoil, like Germany before the second World War. It defines legitimacy substantively and exclusively (there is only one way, the right way): specific people, actions, and institutions are legitimate; others are not. They would say: If you are not like me or belong to my group (e.g., belong to another race, nation, or religion) or if you do not behave or think like me, you are inferior and illegitimate (perhaps to go so far as to say "non-human") and your behavior and ideas are not legitimate. To some degree, the original architects of the Internet succumbed to this attitude towards outsiders - in this case, to the new interests of the new users of the Internet, that increasingly came from a commercial or legal background, and wanted to have a voice in the policy-decision process.

6. Norms and Trusting. Legitimacy relates to, and strengthens, norms. Norms can regulate conflict among people and groups, even when without a third-party decision maker. Thus, legitimacy may provide the ground rules by which conflicts may be resolved. However, norms consist of the substantive rules of behavior. Legitimacy in our sense consists of the ground rules that help support norms. Legitimacy also relates to trusting, both in personal relationship, and in institutions. It attests that the institutions and concepts are the authentic, genuine, the real thing and not fakes. That is why we have a special type of theater which we call legitimate theater--the real theater. Both norms and trusting were decisive in the original model of Internet governance. It is an overlooked but relevant fact that the makers of the original community of the Internet all pretty much knew one another on a personal basis. Not only did they share similar norms, but also friendship, or at least a relationship. That led to a degree of trust in each other. In the case of Dr. Postel, it led to trust in his judgement, even if his decisions were against the wishes of a certain party this attitude strengthened trust. In the tributes that were paid to him by members of the Internet community on the Web site of the Internet Society, one engineer made a point to mention how "Jon" was always accessible to others.

This summary of legitimacy's definitions and sources suggests that each generation and different cultures may have different ways and purposes for bestowing legitimacy. Yet the impact of legitimacy seems to be the same: it always testifies to the genuineness of people, institutions and actions; they are deemed real and true. That increases our trust in them. Trust increases our support of them. Support increases our following them and accepting their power over us. In short, it legitimizes.

VI. Why is Legitimacy Important to ICANN?

Legitimacy is related to enforcement power. It results in a voluntary following rather than in coerced following. By way of example, the Pied Piper in this sense was legitimate. Not only did the children follow him, but he was wronged by the town's elders and had a right to punish them by leading their children away. As goes the nursery, so goes civil society (a rather unsettling prospect). Arguably, the more force a decision maker has to effectuate its decision, the less legitimacy the person needs. However, the use of force is costly. Even a ruler with force would prefer a voluntary following. Further, a society governed by fundamental democratic principles will not long tolerate enforcement based on force alone or substantially based on it. Government must gain legitimacy or fall.

In the case of ICANN, legitimacy is crucial because ICANN lacks the power of force, and also can be easily circumvented as an institution. These two factors are inherent in both the policy-making design, as well as the technical architecture of the network. Indeed, it is the nature of the Internet for this to be so. Regarding the governance structure, ICANN lacks power of force: Despite the emergence of contractual relationships with the parties that participate in the ICANN process - such as the registrars that delegate domain names, the IP address registries that allocate IP numbers, the Internet's standards-setting body IETF, and the "root nameservers" that match the names to the numbers - ICANN has no power to mandate their allegiance, or impose penalties if they do not participate.

For example, while ICANN can penalize parties such as domain name registrars if they do not uphold the contractual terms set by ICANN, nothing prevents any of the parties from refusing to cooperate in ICANN's governance system and set up their own domain names or numbering regime. This, so far, has never been tested. However, the managers of country-code top-level domains (cc- TLD), such as .ie for Ireland, have over the past 18 months threatened to leave the process as a way to extract "friendlier" agreement terms in return for their support of ICANN. In this case, better terms are those that give the cc-TLD administrators greater autonomy to determine to their own policies; specifically, whether ICANN decisions concerning registration procedures can be binding on them without their actual consent. The same sort of power-politics have occurred among the IP address registries. As for the IETF, many of the leading engineers refuse to acknowledge that ICANN has any power over their operations, since the independent-minded “techies” have traditionally been hostile of top-down control and believe they can leave the process at any time and continue to do their engineering work unencumbered. In short, the contracts are a test of ICANN's authority, at a time when ICANN fundamentally lacks both legitimacy and force.

However, more important than the political architecture to the viability of ICANN is the technical structure of the Internet itself. As an intentional principle of its design, the Internet resists centralization. A close look at the actual protocol itself shows why. The original packet-switched data network build under the auspices of the U.S. Department of Defense in 1969 was intended to be able to function even in a case of a nuclear war, because it would be able to continue to transmit data even if certain nodes on the network were destroyed. It does not need any centralized control to work (other than the very slight coordination of the IP addresses - but not the names or the root servers, which is a layer above the infrastructure itself).

The system can accomplish that because each packet contains the address of its destination; packages are smart, they know where to go. But they don't know how to get there - -and, more importantly, they don't care. Instead, they let the routers throughout the network determine the path that the packets of data will take, by dynamically updating information about the status of the network. It's ingenious, really, because the routers will actually resend packets until they receive an acknowledgement from the next router one hop away downstream that the packets arrived safely. That situation repeats itself until the entire flow of traffic arrives at its destination. In cases where one path is congested - or blown to smithereens - the router will try to send the packet via a different path. And as a meshed web, the routers can choose from a number of different paths to ensure that the data arrives safely.

These technical characteristics in the details of the network are mirrored in the broader technical way that the Internet is held together. Just as each packet of data is autonomous, so too are each of the privately-run networks that comprise the Internet - such as an Internet service provider, like AOL or Sprint. They are able to determine what routing information they will use and what standards they will adopt. That was the consensus model of the Internet's original governing mechanism. It was held together because there was an agreement to adopt a single standard to increase the value of the network to all users. With a single standard, more people would be able to reach more people. It's the economic principle of network externalities. As a result, the networks agreed to the light-touch of coordination by the IETF (in technical standards), the IP address registries (for the allocation of address space) and Jon Postel's management of the domain name system and the root nameservers that match the names to the numbers.

Yet, the system is extremely fragile. At any time, any one of the networks can independently choose to adopt a different system for names, numbers and standards. If one network were to do it, the effect would be small, and there would be no incentive for other networks to switch unless that one network was incredibly large, or its users incredibly important for their users to reach. However, if a critical mass of these separate networks were to deviate from the ICANN- sanctioned networking system in favor of an alternative one, or simply in addition to the ICANN-ruled system, than there could be a sufficient incentive for other networks to follow suit. Thus, just like a path of data confronted with a single point of failure in the network, the entire operation of the Internet's ISPs can simply "route around" any degree of centralized political control. Ultimately, this means that the authority of the network is in the hands of the entire Internet community itself, comprised of the individual networks acting as a collective force, and is always in a precarious balance. To hold that balance stable, to exercise a degree of authority, the legitimacy of the Internet's central coordinating body is imperative.

What is clear from this brief examination of the policy-setting and technical underpinnings of the Internet is that ICANN does not have a monopoly power as the central control-point for the Internet. Rather than like citizens bound by the laws of the country in which they reside, all the autonomous actors that comprise the Internet's infrastructure exist in an ephemeral community in which they are free to set their own rules, that they then agree to mutually abide by - until they collectively decide to change them again. That is what is meant by "Internet self-governance" - that the actors that comprise the network determine its operations.

It is precisely for this reason that Dr. Postel insisted that he never wielded any power at all - that he simply affirmed the sentiment of the wider community. And, of course, it is precisely because he took this approach, that swaths of network administrators agreed to abide by his decisions, and vest him with power, authority and legitimacy. In fact, Dr. Postel at times took actions that some participants viciously disagreed with - such as stalling a network protocol from the standards track, or refusing an IP address allocation -- yet they continued to respect his authority, because they viewed it as legitimate. They knew that ultimately, he was seeking the best interest of the wider Internet community of which they were a part.

VII. ICANN's Obstacles in its Quest for Legitimacy.

The Internet has no center, and thus any central governing system always will be in jeopardy. To return to the example of the telecommunications world, by way of contrast, the phone system's technical design is by nature a hub-and-spoke network, not a meshed network. Every path that a voice conversation takes must be pre- determined and is unchanging. In fact, usage is metered (and, alas, billed). All these factors lead it to control by a central power. Likewise, the governance of the phone system is completely centralized. And, once again, that central governing system is enshrined by the will of nation states.

ICANN's board members and the governments on ICANN's government advisory committee are well aware of the fundamental fragility - some would say "instability" - of the Internet, whereby the entire system is held together by trust and consent. As a means to gird the governance structure against fracture by uncooperative actors, ICANN and governments seek to acquire and assert powers that previously did not exist in the classic Internet self-governance model. Both groups have focused their attention to two areas: The names, and the "root," the term used to describe the masterfile of top-level domain names like .com that makes the Internet user- friendly. While the technical system of the Internet does not need the names to function, essentially all users navigate the Web by way of domain names. For the moment, the U.S. government maintains control of the "root" (under its authority dating back to the network's founding), and will continue to do so during the two-year transition period for ICANN to become firmly established. Once ICANN has control of the root, it will posses the power of the Internet. Additionally, ICANN is taking actions that ensure it of some enforcement powers right away, such as setting contractual obligations on registrars and registries (the entities that run the databases of domain names) to abide by ICANN policies.

But the root system itself can be very easily technically bypassed as a central point of control. Any network can decide to create their own domain names that would be readable only on their network. Although that would make the network an island among its peers, if other networks agreed to use this naming convention, it would become viable as the de facto standard. The entity that coordinated this new naming information would in essence control a new root - and would effectively duplicate or replace ICANN.

Some technical people are actually hard at work trying to devise an engineering solution to bypass the control that ICANN wields, so that the network requires even less centralization of power, and the naming function not run in an essentially monopolistic way. While the current Net requires a central point to run, engineers say they will create a Web that needs no spider, insofar as the naming system can be de- centralized.

Meanwhile, there are some people who do not believe that ICANN needs a broad-based legitimacy at all. It is enough, they figure, if ICANN is supported by a coalition of large powerful bodies, presumably representing the multitudes. However, there are a number of problems with this approach. First, the U.S. government and perhaps other governments cannot afford to support an entity that did not gain sufficient degree of legitimacy and following. The risks of an alternative network governance system emerging would be greater, and there is be little assurance that the public interest would be served.

Second, the support of the powerful, which is based on power alone, is insufficient. It must be based on some principles of fairness that do not necessarily relate to direct self-interest. In fact, the more self-interested the coalition of the powerful is, the less legitimacy the support and supported ICANN receives. ICANN is not merely an entity in the service of its members, or shareholders. Self-interest of the shareholders can guide the management of corporations. Self- interest of the public must guide the management of a public-oriented entity. But if the public- oriented entity is managed for the self-interest of a coalition of the powerful, the outside observer must be convinced that this self- interest coincides with the public interest. ICANN has not provided complete evidence of this identity of interests.

Another argument that reduces the importance of legitimacy is that ICANN is designed to do things, to operate, not to play games of legitimacy. The questions raised by this argument are twofold. First, there is a question of accountability. The management of most operating companies are accountable to their shareholders. The management of non-profit corporations are accountable to those who support the corporations financially (and do not receive any financial direct benefits for their contributions) as well as to public opinion represented by the attorney general.

It is clear that non-profit organizations' management are not as accountable as management’s of for-profit organizations or political power holders. ICANN's non-profit status has put its management in a position of a very weak accountability. It is presumably accountable only to its coalition and funding entities, perhaps. Second, ICANN is not a purely operating company. It has policy-making powers that affect millions of users and thousands of service providers that form the infrastructure of the Internet. In that function it is closer to a government than to a business organization. Its ambiguous objectives give its management the power of ambiguity-- discretion to decide what management is supposed to do and how to do it. So long as outsiders do not contain the exercise of this power, management will continue to exercise it. Ambiguity of objectives without trust undermines legitimacy. Policy decisions require legitimacy.

VIII. How Can ICANN Gain Legitimacy?

For the moment, ICANN has so far been a reactive organization. It has had to clean up the mess of an Internet governance power-vacuum and crises of legitimacy that has festered over the last four years. It has therefore been distracted by solving immediate problems rather than implementing long-term objectives. It has not sought to build up the relationships of trust that is the lifeblood of any legitimate institution.

ICANN has temporarily settled earlier debates, such as the power structure for the domain name system, but has been slow to protect itself from future challenges. In the past, a sort of truce to the Internet governance wars came in June 1998, after the U.S. government issued its "White Paper" calling on all quarters of the Internet industry, including the most vociferous opponents to the current governance system, to craft a successor institution to Jon Postel's IANA. It established broad principles for the institution, upholding the primacy of process. But the process was intended to build upon the existing institutions, so that continuity could be preserved. What was needed, it was argued, was a formalization of process that would be permissive of an ever-expanding number of diverse viewpoints, particularly of IANA's critics. Whereas Dr. Postel himself played a leading, albeit stereotypically quiet, role in the new body's formation, the question of legitimacy was not the central issue. But with Dr. Postel's passing in October 1998, a week before the ICANN application would be accepted by the U.S. Department of Commerce, the new body has started life without the legitimacy that Dr. Postel possessed. Lacking that means to attain legitimacy, ICANN must find other ways.

Because the constituencies of ICANN are so disparate and their interests and cultures may conflict, as well as coincide, it is only possible (and also desirable) that ICANN should follow the process route to legitimacy. A requirement for a high level of identity among the constituencies, and exclusion of those who do not fit, will undermine the very purpose of ICANN. Rather than constructing a governance system that seeks to prevent the disaffected from leaving, it would do well to concentrate its efforts on seeking to build as broad a base of support as possible, so that the major players stay. It should not try to stymie actors from routing around ICANN's authority, but to make it more costly for them by dint of the power of the participants themselves. It is an approach akin to Confucianism or early Church teachings: In order to lead, it is necessary to serve; leadership as subservience. This is a counter-intuitive notion of power, insofar as ICANN's power would derive from the strength of its stakeholders, not from itself. It also corresponds closely to the original design of Internet self-governance. It is particularly appropriate since ICANN depends on followers not only to accept its decisions but also to politically support it and fund its operations.

To be sure, it is difficult to translate theoretical materials into a plan of operations. Theory rarely provides a list of "how tos" to achieve its purpose. Nevertheless, a re-focus by ICANN on questions that go beyond process (with transparency, accountability and recourse), and into reciprocal enforcement, self-limitation, and balance of powers may help ICANN's future activities.

Legitimacy can be created and retained by reciprocal enforcement, for better or worse: Violations of legitimate rights can bring reciprocal violations of rights by the injured party. Like norms, legitimacy can grow strong muscle by covering people under its mantle if they enforce its protected subjects. Those that do not enforce legitimate actions or institutions or people are then deemed to have become illegitimate. Today legitimacy may be backed by the authority of a consensus, achieved under proper procedures. Here a loop is created to join such issues as the nature of consensus, and the procedural requirements necessary to create legitimacy. Clearly it is not consensus on the subject matter. That does not leave space for legitimate conflicting positions. The consensus that is necessary is that which provides a sense of fairness so that even those whose opinions were rejected would not feel aggrieved. Further, the process legitimates future cases in which parties do not know the outcome.

Judicial procedure may serve as an example. People demand their "day in court," regardless of whether they win the case. That is for them an assurance of a "fair chance" to win. Therefore, it is important to allow people to be heard and present their views to the decision-makers. The courts' decisions indicate that parties were heard and that their views were considered, as is demonstrated by the very structure of the judicial decisions. With very few exceptions judicial decisions recite the facts and the parties' arguments -- proof that the facts and arguments were read. The decisions address the arguments -- proof that the judges thought about the parties’ positions. The judgments provide reasons supporting the decisions, accepting or rejecting the parties' arguments -- proof that the judges deliberated. This is an expensive but convincing method of fairness-based legitimation not only of the decisions rendered but also of future decisions and the institution as a whole. Legitimacy of a decision-maker, such as a court, may require a perception of trustworthiness. In this case as well, the manner in which decisions are made may be more important than what decisions were actually made.

It seems clear that the general public in the United States, for example, regards the Supreme Court as a legitimate political institution, although this view is not unqualified. Studies show that many believe the Court to have asserted too much power. However, the Supreme Court has recognized that unless the public views the Court's decisions as principled decisions, its decisions will lose much of their obligatory force. Therefore, it is crucial to maintain their legitimacy. Studies have demonstrated that in the opinions of citizens the Court's neutrality and trustworthiness are more important than whether the citizens agree with the courts' decisions. Thus, how decisions are made may be more important to Court legitimacy than what decisions are made.

This is not to say that ICANN should operate in a glass bowl - that is contrary to effective procedure as well as common sense. What is needed, however, is a more open and reasoned decision-making process. The community has a right to know what arguments the ICANN board considered and why they decide as they do. A sort of independent supervisory court of justice is required, a mechanism so that the disaffected at least feel comfortable in the process by which the decisions were made. Barring that, it will limit their influence to sidetrack the process by clearly showing that the process of the debate was reasonable and fair. It is hoped, of course, that content follows form just as the Greeks instructed; that a decent process for decisions will lead to decent decisions as well in substance.

What's more, trust is a reflexive and reciprocal relationship. When ICANN's power holders send signals that they do not trust the world population at large, they may be right, but their signals create distrust in themselves. Rather than send such general signals and highlight fear of capture and other evils by others (not by the power holders) and require others to trust, these power holders may do better if they announced self-limitations on their exercise of power, guarantees by others and alike. These types of bonding create trust. The creation and adaptation of norms and the facilitation of trusting from other experiences can be useful. That is the value of the mailing lists that were created to foster dialogue from the broadest possible community. But it also helps to achieve a distinct culture for the institution and its participants, whose diverse values and mores is the yeast of the process, but also create the institution's own norms.

In his book The Complexity of Cooperation (Princeton, NJ: Princeton University Press, 1997, p. 55), Robert Axelrod has dealt with promoting norms. He focuses on coordinated behavior by "[l]arge numbers of individuals and even nations... without the intervention of a central authority to police the behavior...." Also, norms are created in an evolutionary manner. Likewise, ICANN's legitimacy is a matter of evolution. In contrast to norms generally, however, ICANN's legitimacy must be based on the White Paper norms. It cannot be based for example on a norm such as vengefulness. This is a real concern, since the company that formerly held an U.S. government-granted exclusive right to register domain names, Network Solutions Inc., radically changed the Internet community's non-commercial norms by charging a fee for the names. The community felt betrayed. As negotiations continued in 1998 and 1999 for the U.S. government to remove itself from operating the Internet's "root," and NSI used what some viewed as tough tactics to extract a favorable deal, a sprit of revenge seemed to resonate with NSI's critics. This sort of approach will hurt ICANN, as well as Internet policy-making, in the long- term. Rather, a lesson can be learned from the way that South Africa and other countries that emerged from a bitter internal strife went about building a new set of norms for civil society: Often, these countries created "Truth and Reconciliation Commissions" as a means to displace the legacy of vengefulness so to move forward. While this is not needed for ICANN per se, it is imperative that vengefulness be muted and disapproved.

To create legitimacy ICANN must command the trust of people and institution. It is unclear who those should be, but the White Paper, the United States government and Congress require that the trusting population would be very broad, and include governments, business and individuals. This enormous and varied population should reach a rough consensus on ICANN’s mission and reasonably believe that ICANN is doing the "right thing." Creating new norms is one significant way that ICANN can be trusted as an institution; its leaders trusted as people.

Accountability is also important. It is insufficient for ICANN to obtain the United States government's powers over the naming system as a basis of its authority. That in and by itself does not create legitimacy unless the power transfer is accompanied by the accountability and democratic structure of the United States government, or at least by the structure as envisioned in the White Paper. One method by which legitimacy is acquired is to show that the power holders account for their exercise of the power. One needs far more trust in an unregulated bank that is not covered by FDIC insurance than a regulated insured bank, under the U.S. banking system. Accountability can be achieved by the existence of a higher authority, or by the existence of popular electorate. Accountability is scuttled by the absence of a higher authority over ICANN and a lower, bottom- up responsible electorate. Yet it is not clear whether the existence of an electorate will create the type of accountability that would earn legitimacy, in light of the fact that the "electorate" in this case is dispersed, in the millions, and has little or no stake in ensuring ICANN board's accountability.

Additionally, disclosure or transparency supports accountability. Disclosure acts as a deterrent. Some actions are not taken at all if they have to be exposed. Others allow for monitoring and criticism. On the other hand, not all meetings of ICANN's governing bodies should be public, to allow for negotiations, admissions of errors, and the like. Thus, the business model is reflected in ICANN's meetings to some extent. They are open in the sense that the board or some members of the board attend open meetings in which people can talk. Its decision making meetings are closed. However, such an approach cannot be justified because ICANN lacks the mechanisms that render the boards of business corporation accountable; it has no shareholders nor members as yet to substitute for them, and no market to monitor and control excesses.

An important, and often ignored, mode of legitimacy is attitude and style of communications. Those who act as if they are in power (whether or not they are) create mistrust, especially by those who are not subservient. On the Internet many are not - -indeed, the power ultimately rests with the participants themselves. Lack of respect and high-handed form of communication can create resentment that undermines power holders' legitimacy, especially when the power holders do not have legitimacy from higher authority and depend on bottom up support. This is what hurt the Internet's first attempt to settle the question of who sets policies over the domain name system with the IAHC in 1997. Although the committee comprised representatives of the Internet's then-governing institutions, the IETF and IANA, as well as UN agencies and one U.S. government official, many in the Internet community mistrusted the organization and objected to its authority since it acted in a sanctimonious way on the public mailing list and in public appearances. It is a lesson that ICANN's current and future boards would do well to study and heed.

Another method of creating legitimacy is to induce members in the consensus coalition to be the enforcers of the consensus, and punish dissenters. The punishment need not be financial or violent; it can be disapproval and distancing. A drastic example of this type of pressure to cooperate to foster legitimacy are the diamond exchanges around the world. The system is based on handshakes. Although there are means for arbitration in some cases, the general rule is that if you are treacherous, then you're out of the group of traders. This works because the group is small and the sanction of exclusion is devastating for members. For the Internet, a form of moral suasion to entice parties to remain faithful to the larger interests of the Internet community would help foster legitimacy in the Internet's governing institutions.

Yet the example of the diamond exchange's governance system also lends a lesson to ICANN. Because the cost of protecting ones' self is very high, self-limitation is a very efficient way to assure the support of others. In this case, legitimacy may be created by abstention from the exercise of the power. One of ICANN's functions is to encourage the creation of a competitive market among the different registries and among registrars. ICANN faces an inherent conflict. In order to eliminate the monopoly that is currently held by NSI, ICANN must require monopoly powers for itself. This demand undermines legitimacy and fosters mistrust. That is especially so when ICANN sought to acquire NSI's assets (its database of registrants) alongside a $1.00 charge on users for each name registered to finance ICANN's activities (later withdrawn after U.S. congressional pressure). If ICANN arranges to create an on-going trusting relationships among varied participants, they can create a principle of self-limitation for their own powers, too. This is different than a balance of power, where one party limits the power of another. That, so far, is the path ICANN seems to follow, whereby the different constituencies each vie with one another and seek to hold others in check. That is a "creative tension" that seeks to find consensus by competition. Self-limitation, in contrast, tries to build consensus through harmony rather than cacophony.

Finally, legitimation is like a snowball, increasing with good impressions and decreasing with bad ones. ICANN would do well to recognize that it requires time to legitimate, take very great care to act responsibly and account. It has some way to go.

IX. Conclusion

What is the Internet? At the inception of the mature Internet Protocol specification in the mid-1970s, engineers referred to the system as a "network of networks." Indeed, as its name explicitly suggests, it is an "interconnected network." That gives a clue as to its nature. The Internet is a collective, not an entity. As such, it is difficult to be ruled over, without changing its essence. And to change its nature would be to destroy the very reason it became successful and will continue to grow: Power resides at the end-points, with all the autonomous networks that voluntarily agree to interconnect without a central power setting the rules. Internet governance will only be successful if it elides with the nature of the Net, not as an artificial, inorganically-grown structure that seeks to control it.

The power of the bottom-up model of Internet governance is obvious: it fosters experimentation and innovation, which is the motor of the perpetual Internet revolutions that we have witnessed throughout its existence. Scott Bradner, one of the Internet's long-time leaders, believes the Internet's importance lies not in the fact that it is a revolution in communications architecture, but that it serves as the platform for future revolutions, as the printing press did and does. In his view, the central dilemma of Internet governance is not "who sets the rules," but "who says who sets the rules." At the heart of his comment is the question of legitimacy.

For the moment, his question is still debated. ICANN has some degree of control, with the support of governments. But power rests with the sub-groups of constituents that exist under the ICANN structure. After years of fractious fighting, there is an armistice. But it is not a peace. The parties have not decided to lay down their arms, only to stop fighting. In a manner similar to Roland Barth's observation that periods of calamity create a sense of solidarity as in the case of the floods of Paris in the 1950s, this iteration of Internet governance has resulted in a moment of togetherness that beget former rivals working together for common aims. But such periods do not last, just as the bonds that held Parisians during their temporary hardship loosened once the Seine receded. ICANN must use this window of opportunity to establish trust, and win legitimacy.

ICANN's critical challenges will come from those disaffected by its actions. ICANN must be strong enough to weather such circumstances, since they will only grow greater as the institution matures. The point is not to make all parties happy (an impossible task), but to keep the largest number of parties together into a bond of trust and mutual self-interest. That, ultimately, is how ICANN's success will be measured.

For the moment, the difficulties to achieve this goal loom large. ICANN was not born as an entirely legitimate child. It did not derive its powers from any higher authority, divine, political, or legal, nor from the consent of the governed. It derived its power from the prodding of the White House to organize and be born, with a promise in the future. Then, under the watchful eyes of Congress and other interested governments, ICANN may receive from the United States government its management powers of the naming system, with the transfer of the "root." But even then, ICANN will be a transferee, not necessary a delegate, of the United States powers. There is even an inconclusive debate over whether the U.S. actually has that power, other than on paper. Network engineers would say that they do, as a group. They are probably right. Moreover, ICANN's future is shrouded in a questionable legal status, as California-based non-profit corporation. Further, there are questions as to whether the United States has followed the spirit of statutory law governing the executive's establishment and control of private corporations. And there are questions about the process by which the Interim Board was selected.

With these lingering uncertainties, ICANN's legitimacy is not easy to achieve. ICANN's constituencies are very different from each other. ICANN must be supported by a fairly broad consensus of very different interested parties in terms of goals, power structure, and process. One can hear the strong democratic bent as well as the fear of those in control from the multitudes -- unpredictable and, some believe, easily manipulated, used or bought. One can hear quite clearly the echoes of the authoritarian, centralized, business approach, requiring uniformity, prior approval and most importantly, transfer of control tools to ICANN, turning it into a strong monopoly.

ICANN's objectives are unclear and its institutional identity is ambivalent. Some vocal individuals, like the consumer activist Ralph Nader, and a number of academics demand that ICANN take on a political identity. The technical communities seem to have chosen for ICANN the role of a technical support organization, without final power to establish policy. ICANN's Board seems to have a corporate model in mind: open to some extent but not completely. It will make for rough going. Legitimacy is ICANN's enforcement backup. ICANN does not have and is not likely to have enforcement powers of earth-based governments. It can have only the root-server behind it, if it gets it from the United States government.

Finally, ICANN is an experiment. It has to prove its success. Its establishment and current existence are accompanied by doubts. The United States government must be comfortable that ICANN has a positive broad base of consensus, and be convinced that ICANN is not captured in order for ICANN to at least get the blessing and powers from the U.S. government. Thus, for practical and political reasons, unless ICANN is viewed as a legitimate bearer of the power to manage the naming system, it will not get far.

But once it does get power over the names, numbers and protocols -- if it does -- then what? Will the institution truly be able to ford the rough waters of a decentralized network of networks, even as governments and business clamor for it to exercise varying degrees of control? Will it be paralyzed by the need to garner support, and thereby lead the Internet into an unprecedented era of stasis? These issues are not so much the questions, but what's at stake if ICANN fails to achieve legitimacy.

It is the authors' sincere hope that ICANN succeeds. But we take a special degree of succor and satisfaction in knowing that if it fails, the Internet will not come to an end. On the contrary, perhaps it may be a good thing. New creations from the ashes of the old are a central tenant guiding the development of Internet. History is populated with similar examples. Preserving the legacy of Internet development is preserving a degree of freedom with which the Internet is at once an embodiment and a catalyst. So the question really comes down to whether ICANN's legitimacy will enable it be flexible enough to accommodate change without the need to replace it. Without legitimacy, ICANN will fail. It will be superceded by something else, just as the Internet is poised to subsume the telecom world. That world was unable to embrace the Internet and is now struggling to remain relevant. Its the top- down legitimacy bestowed by governments does not help. Legitimacy must come from the bottom-up.

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NOTE:

1. Ms. Frankel is a Professor of Law at Boston University School of Law. Mr. Cukier is a journalist specializing in technology and policy issues.

* On copyright: Permission to use and / or cite this paper will likely be granted on request; one author defers to classic permission-based control of works, while the other uses an open approach that allows for non-commercial free reproduction provided the author and title is indicated. This compromise meets the interests of both authors, and the legal, academic and policy communities.