two years ago an entity called the internet corporation for assigned names and numbers (icann) was formed to take control of

the internet’s infrastructure of domain name and ip address identifiers. private parties formed icann at the behest of the u.s. government; the government is currently using its considerable resources to

cement icann’s authority over the domain name space. icann’s

role is one generally played in our society by public entities. it is ting rules for an international communications medium of surpassing

importance. that task had historically been performed by a u.s. government contractor in an explicitly public-regarding manner. icann

is addressing important public policy issues. further it is implementing some of its choices via means that look uncannily like commandand-control regulation. if icann is to establish its legitimacy it must

be able to answer the charge that its exercise of authority is inconsistent with our ordinary understandings about public power and public

policymaking.

in developing structures procedures and rhetoric to establish its

own legitimacy icann has drawn on techniques that parallel thejustifications historically offered to defend the legitimacy of the

unelected federal administrative agency. first it has invoked what one

might call the techniques of administrative law: it has in important respects structured itself so that it looks like a classic u.s. administrative agency using and purportedly bound by the tools of bureaucratic

rationality. yet the techniques of administrative law are inadequate in

this context for they do not provide meaningful constraint in the absence of judicial review. in the administrative agency context it is judicial review for rationality and statutory faithfulness that drives the

agency’s own commitment to process and rationality. but there is no

icann institution that performs the function that judicial review performs for administrative agencies.

second icann has invoked the techniques of representation: it

has adopted structures and procedures that make it resemble a representative (that is to say elective) government body. icann’s election

of new at-large directors as this article goes to press including candidates who campaigned on a platform of skepticism and reform is

heartening. yet the task of representation is hardly straightforward.

there may be no way to craft an elective mechanism that ensures that

the immensely heterogeneous internet community is represented in

any real sense within icann’s structure. although elections can

broaden the of communities given a voice within icann’s halls

they cannot render icann into a reflection of the internet community. they can improve icann’s decisionmaking but they cannot

reliably aggregate the preferences of the internet world at large and

thus tell icann whether to adopt a disputed policy.

finally icann has invoked the techniques of consensus: it has

asserted that its structure and rules ensure that it can only act in ways

that reflect the consensus of the internet community. but this is illusory. icann does not have procedures that would enable it to recognize consensus or the lack of consensus surrounding any given issue.

it has commonly taken actions with no clear showing of consensus in

the community at large and its methods of determining that a particular action is supported by consensus have often seemed opaque.

indeed there is no reason to believe that the issues over which

icann seeks to exercise authority are ones around which any genuine consensus can be formed.