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government had indirect authority over both of them, so no regime could have been
created without the acquiescence of the U.S.
1.
Resource-based regulation.
Even though it is considered an alternative to government, ICANN is a rather
powerful regulator, with sweeping control over the economic structure of those segments
of the domain name industry with which it has contractual agreements. ICANN is able to
act as a regulator because of its control of a strategic leverage point in a technical system.
The US Department of Commerce has given ICANN policy authority over the root zone
file, which defines the top of the domain name hierarchy. By deciding what names can be
entered into the root, ICANN controls and restricts entry into the market for domain
name registrations. It uses this control of market entry to impose, by “contract,” a number
of regulations on suppliers and users of domain names. For example, it caps the price of
domain name registrations at the wholesale level. ICANN also regulates the market
structure of the domain name industry by preventing gTLD registries from selling
registrations directly to end users and imposing technical standards for access to the
registry by competing, retail-level domain name registration companies known as
“registrars.” It defines and enforces policies that accredit registrars. It defines policies
regarding whose rights to names can be enforced in the domain name space; it accredits
domain name dispute resolution service providers. ICANN also plays a relatively minor
role in the allocation and assignment of Internet protocol address blocks, but this role
might become more important in the future, as the possibility of a transition to a new
Internet protocol, IPv6, may open up a huge new address space.
ICANN’s decisions also have privacy implications. Domain name registration records
contain contact information that can be searched and used for service of process. ICANN
sets and enforces policies regarding the accuracy of this information, access to the data,
and the supply of this data by registries and registrars. It uses its power to take away a
domain name as the method of enforcement.
Note the tension between ICANN’s regulatory functions, which affect the rights
of consumers of domain names and (indirectly) all Internet users, and the concept of
Convention