[Paper Review] ICANN as Regulator

Jonathan Weinberg|arXiv (Cornell University)|Sep 24, 2001

ICT Impact and Policies3 citations

TL;DR

This paper analyzes ICANN's 2000 decision to select seven new generic top-level domains (gTLDs), revealing a highly subjective, ad hoc process that prioritized board discretion over rules-based criteria. Despite aiming for situationally sensitive policy advancement, the process was criticized as arbitrary and inconsistent with transparent, fact-based decision-making.

ABSTRACT

This paper tells the story leading to ICANN's selection of seven new Internet top level domains in November 2000. In implementing proposals to expand the name space, ICANN adopted an approach far different from Jon Postel's lightweight proposals. ICANN staff, in setting the ground rules for considering new gTLDs, emphasized that only a few applicants would be allowed in, and imposed strict threshold requirements. Staff determined that the Board should pick TLDs by looking at all relevant aspects of every proposal, and deciding which ones presented the best overall combination of a variety of incommensurable factors. Aspects of the resulting process were predictable: Anyone familiar with the FCC comparative hearing process for broadcast licenses can attest that this sort of ad hoc comparison is necessarily subjective, lending itself to arbitrariness and biased application. Yet the process had advantages that appealed to ICANN decision-makers. The Board members would be free to take their best shots, in a situationally sensitive manner, at advancing the policies they thought important. The approach allowed ICANN to maintain the greatest degree of control. The end result, though, was a process stunning in its arbitrariness, a bad parody of fact-bound, situationally sensitive (rather than rules-based) decision-making.

Motivation & Objective

• To examine the rationale and process behind ICANN’s selection of seven new gTLDs in November 2000.
• To contrast ICANN’s approach with Jon Postel’s lightweight, rules-based proposals for expanding the domain name space.
• To investigate how ICANN’s decision-making process balanced policy goals with procedural transparency and fairness.
• To evaluate the implications of a non-rules-based, discretionary selection process for Internet governance institutions.

Proposed method

• Analyzing ICANN’s internal decision-making framework for gTLD selection, particularly the role of staff in setting strict threshold requirements.
• Comparing ICANN’s process to the FCC’s comparative hearing process for broadcast licenses to highlight similarities in subjective evaluation.
• Assessing the board’s authority to evaluate proposals based on a composite of incommensurable factors rather than objective criteria.
• Examining the trade-offs between maintaining institutional control and ensuring procedural fairness in high-stakes Internet governance decisions.
• Evaluating the impact of discretionary decision-making on perceived legitimacy and consistency in Internet resource allocation.

Experimental results

Research questions

• RQ1 How did ICANN’s gTLD selection process in 2000 differ from Jon Postel’s lightweight, rules-based proposals?
• RQ2 What were the key procedural mechanisms used by ICANN to evaluate and select new gTLDs?
• RQ3 To what extent did the process rely on subjective judgment rather than objective, standardized criteria?
• RQ4 How did the structure of the selection process affect the legitimacy and transparency of ICANN’s decisions?
• RQ5 What were the trade-offs between institutional control and procedural fairness in ICANN’s decision-making framework?

Key findings

• ICANN’s gTLD selection process in 2000 was characterized by a lack of clear, objective criteria, relying instead on subjective, ad hoc comparisons of proposals.
• The process emphasized board discretion, allowing members to weigh diverse, incommensurable factors in a situationally sensitive manner.
• Despite aiming for policy flexibility, the process was widely criticized as arbitrary and inconsistent with transparent, fact-based governance.
• The approach enabled ICANN to maintain maximum control over the selection process, but at the cost of procedural legitimacy.
• The outcome was described as a 'bad parody' of situationally sensitive decision-making, undermining the credibility of the process.
• The selection process bore strong resemblance to the FCC’s comparative hearing model, which is known for its susceptibility to bias and inconsistency.