Multistakeholder Regulation and the Future of the Internet.

• Author: Raustiala, Kal

TABLE OF CONTENTS I. INTRODUCTION 162 II. THE RISE OF THE INTERNET 168 A. A Brief History of the Internet 168 B. International Organizations and Multistakeholder Global Governance 172 III. THE POLITICS OF INTERNET GOVERNANCE 176 A. The Threat of Multilateralism 176 B. The Creation of ICANN 179 C. Two Visions of the Internet 181 IV. DELEGATION AND TRUSTEESHIP 186 A. Explaining the Transfer of Authority to ICANN 186 B. Multistakeholderism and International Law: Implications from the ICANN Experience 192 V. CONCLUSION 194 I. INTRODUCTION

International organizations are a mainstay of contemporary international law. Rare a century ago, today there are thousands of such organizations, ranging from the United Nations to the International Bureau of Weights and Measures. (1) International organizations can be bilateral, such as the International Joint Commission governing the North American Great Lakes, or trilateral, such as the North American Commission on Environmental Cooperation. (2) But the vast majority are multilateral, and often comprise a very large number of parties. Some, such as the International Telecommunications Union, date back to the 19th century. (3) Yet, as a tool of multilateral cooperation, international organizations became especially prominent in the years after the Second World War, when major organizations such as the World Bank, the International Monetary Fund, and the UN were established via multilateral treaties. (4)

There is a vibrant debate among international lawyers and political scientists about why governments create and use international organizations. A central part of this debate concerns the important role of delegation. As Joel Trachtman writes: "the essence of an international organization is the delegation of decision-making authority from individual states to the organization." (5) Delegation is, in a sense, essential to a functioning international organization. States are the primary units of the international legal system, and international organizations are created by states. To perform its functions and achieve its purpose, the powers of an international organization must come from the states who create it. Indeed, a systematic empirical study of international legal agreements found, unsurprisingly, that "delegation is widespread." (6)

One prominent strand of research on international organizations emphasizes theories of principal-agent relationships in explaining the existing patterns of delegation of law-making and regulatory powers. (7) This approach draws on literature regarding domestic administrative agencies, in which Congress delegates powers to an agency to regulate, say, environmental protection. As applied to the international level, governments (principals) delegate power and authority to international organizations (agents) in order to more effectively cooperate with other states and manage global challenges.

From the perspective of American law, an international delegation "is the transfer of constitutionally assigned federal powers--treaty-making, legislative, executive, and judicial powers--to an international organization." (8) Governments may delegate regulatory authority to international organizations for a number of reasons: to better manage policy externalities; to gain from specialization and expertise; to facilitate collective decision-making; and to enhance policy credibility. (9) At the core of these theories of delegation to international organizations is the notion that principals ultimately control agents. Every act of delegation involves "a contingent grant of authority." (10) Agents may enjoy some degree of discretion, but as a conceptual matter, what defines principals as principals is that they retain final control over the terms of their delegation to agents. (11) In short, delegation of authority, it is said, is not the abdication of authority. (12)

This Article considers when governments in fact choose abdication over delegation in the international context. To do so, this Article examines an unusual case, one that despite being increasingly prominent has received relatively little attention from scholars of international law and organization: the regulation of key aspects of the Internet. Over the last several decades, the Internet has transformed economic, social, and political life around the globe. The U.S. has played a central role in this process. California is the birthplace of the Internet (13) and home to many of the most powerful technology firms. (14) The federal government has long had an outsized role in both the creation of the Internet and its governance. (15) Originally a Defense Department-funded project known as the Arpanet, for many years the entire Internet resided within the continental U.S. (16) This history gave the federal government enormous control over many aspects of the Internet, including the central issue of the naming and numbering system that ensures the Internet works as a means of communication. The regulation of names and numbers is at the core of Internet governance; for decades the federal government--or its delegates--regulated this key feature. (17)

In 2016, nearly a half century after the Internet's birth, then-President Barack Obama controversially ended the last vestige of formal federal government control over the naming and numbering system. (18) As The Economist wrote at the time,

Barring any last-minute hiccups, something remarkable will happen on October 1st. Nearly two decades after it created the Internet Corporation for Assigned Names and Numbers, the body which oversees the internet's address system, America's government will let lapse a contract that gives it control over part of ICANN. This means that a crucial global resource will henceforth be managed by an organisation that is largely independent of national governments. (19) As The Economist predicted, the U.S. successfully ceded its authority over the naming and numbering system that lies at the core of the Internet to the organization known as Internet Corporation for Assigned Names and Numbers ("ICANN"). (20) Why did the Obama administration choose to do this? That is the central question this Article addresses. ICANN, a non-profit incorporated under California law, was initially delegated regulatory authority over Internet naming and numbering in 1998. (21) This was structured under a contract with the U.S. Commerce Department, and that contract was periodically renewed, with minor changes, until 2016. (22) President Obama's decision terminated that contractual relationship and freed ICANN to regulate in its traditional areas of Internet governance without any direct federal oversight. (23)

ICANN's distinguishing features are its high level of technocratic expertise and its "multistakeholder" governance model; that is, state actors do not dominate ICANN's governance. ICANN instead employs a complex structure in which both state and private actors jointly play key decision-making roles. (24) The multistakeholder approach reflects the complex history of the Internet, in which universities and other private actors played key early roles. (25) Many of these private actors have traditionally favored the freedom and openness that has characterized the Internet since its birth. (26) While the mythology of cyberspace as a sovereignty-free zone is highly misleading, it is true that from its origins through the present day many of the actors most engaged with the Internet have preferred a generally light regulatory hand with limited state intervention. (27) ICANN is also not a typical international organization: it is a nonprofit public benefit corporation established under California law. (28)

The initial choice by the federal government to delegate aspects of Internet regulation to ICANN is, as this Article will detail below, readily explained via existing principal-agent theories. ICANN possesses substantial technical expertise; delegating certain regulatory tasks to it made sense both in terms of policy and politics. But why would a government with jurisdiction over a valuable global resource choose to then irrevocably cede control over that resource to a non-state entity? And what significance does this choice of abdication of authority have for theories of international law and global governance generally?

This Article first provides a brief overview of Internet governance. (29) Much of this governance is technical; for example, IP addresses and domain names, such as.edu or.com, must be standardized and uniform to work effectively as a means of communication. Control over these processes, while complex, has important legal and political implications. This Article then describes multistakeholder governance and argues that the decision of the U.S. to grant full control over the naming and numbering, or "IANA," function to ICANN was a deliberate strategy to help ensure that the contemporary Internet did not fall under the sway of multilateral organizations such as the ITU and remained relatively open and free of government control and censorship.

This struggle between multilateralism and multistakeholderism has long historical roots. From the Internet's initial boom in the 1990s, it grew increasingly dominated by private firms and commercial interests, a shift the U.S. supported. Yet, the Internet also grew far more global in the 2000s. (30) There were soon increasingly insistent efforts to assert multilateral control over Internet governance as more governments began to appreciate the new technology's economic, social, and political impacts. (31) This push for multilateralism was at odds with the multistakeholder traditions of the Internet. Faced with growing global efforts to multilateralize Internet governance, often led by authoritarian governments, the U.S. chose instead to devolve power to a body in which governments by design had only a limited role and private actors a large voice. In short, the Obama...