The organization of the Internet raises some profound and fundamental questions about the nature of law and social order, questions that legal scholars have tackled head-on only occasionally and incompletely. If, as Lessig once argued, technical protocols effect a kind of “law” analogous to treaties, statutes, judgments, and administrative regulations, then by what standard should that “law” be regarded as legitimate and authoritative? Comparable questions have been asked from time to time with regard to informal social norms that seem to operate online, and more frequently with respect to the private but apparently governmental institutions, particularly the Internet Corporation for Assigned Names and Numbers (ICANN), that have evolved over the last decade to govern the wilds of the Net.
Lawrence Lessig, in Code and Other Laws of Cyberspace, and later Michael Froomkin, in Habermas@discourse.net, chose to look at legitimacy in cyberspace from the perspective of normative political theory. Jonathan Weinberg, in this chapter from the International Handbook on Informal Governance titled “Non-State Actors and Global Informal Governance – The Case of ICANN,” steers clear of such normative judgments and instead approaches the task explicitly as one of sociological, or descriptive, legitimacy. Legitimacy is important, as Weinberg, notes, in part because perceptions of an institution’s legitimacy powerfully impact willingness to comply with its commands or defer to its arrangements. Though he does not argue the case explicitly, legitimacy is central to institutional authority. Legitimacy and social order – online and off – go hand in hand.
Weinberg therefore renews a fundamental jurisprudential question, but by adopting a sociological framework, he enters territory only lightly trod by cyberlaw scholars. That turn enables him to base his argument not on first principles, but on descriptive analysis. The chapter is a case study, cleanly and evenly told, of the emergence and stabilization of ICANN as the private, non-governmental but nonetheless legitimate authority with respect to the ‘root’ that stores the technical specifications for the domain name system on (or of) the Internet.
The basic history of ICANN is repeated: Its formation as a California corporation entrusted with management of the root via a contract endorsed by the United States Department of Commerce, its promulgation of requirements and regulations to be followed by accredited domain name registrars, its endorsement of the Uniform Domain Name Resolution Policy (UDRP). Weinberg accurately characterizes all of this as a species of governance, perhaps not “collaborative” public/private governance in the sense developed in American administrative law scholarship, but “informal” governance in the flexible sense developed in European political theory. Within that “informal governance” framework, he tries on a series of possible accounts of the legitimacy of ICANN, its processes, and its outputs, finding each of them wanting. The organization tried to recover by establishing legitimacy via mastery of the technical standards governing administration of the root and asserting that its authority was limited solely to technical coordination. When its essential policy role quickly became apparent, ICANN tried to recover by adopting and following what appeared to be “democratic” processes, and by strategies of consensus-building among its “grass-roots” constituents. Weinberg persuasively establishes the failure of these strategies.
He concludes, by contrast, that ICANN has succeeded in establishing its legitimacy when the organization is understood through the lens of what Powell & DiMaggio refer to as “institutional isomorphism”: the idea that an organization acquires legitimacy within its institutional setting by taking on the characteristics expected of it by client and constituent organizations. ICANN, as an essentially bureaucratic enterprise operating in an environment dominated by expectations offered by business-oriented constituents, succeeded in its legitimacy challenge by adopting the bureaucratic and professionalized character that was expected of it.
The relative brevity of the piece means that its central argument is not brought definitively to a conclusion. What does the ICANN experience tell us about the nature, meaning, and significance of legitimacy? Is it possible to conclude that ICANN, or any modern institution that blends governmental, democratic, technological, and bureaucratic justifications, is or is not “legitimate”? Weinberg focuses on the details of the case rather than an elaboration of theories of legitimacy, and in so doing he leaves the door open for a great deal of further scholarship in this vein.