Tamar Frankel

Boston University School of Law Working Paper 02-15


ICANN has had difficulties in gaining legitimacy. Causes include: (1) its unclear and disputed objectives and powers; (2) disputes over the identity of its beneficiaries and its nonrepresentative governance structure; and (3) its recent proposal to eliminate elected at large directors.

ICANN faces a number of problems relating to its weak accountability and oversight. These include: (1) controversies over its objectives and powers; (2) failure to classify decisions as policy or operational; (3) failure to disclose conflicts of interest; (4) lack of feedback to its constituencies; (5) conflicts among its board members and stakeholders; (6) lack of representation of individual and small business Internet users; (7) lack of a review board for its policy decisions; (8) lack of third-party enforcement mechanisms, such as accountants and lawyers; (9) the reluctance of competitors to claim ICANN's power; and (10) inadequate enforcement by government entities and international organizations.

Accountability and oversight are used to attain legitimacy. Because entrusted power is discretionary in various degrees, and its results are not always easily evaluated, tests must be used to distinguish between policy and operational decisions. There are limitations on entrusted powers, such as conflicts of interest.
There are three categories of mechanisms to accountability and legitimacy. The first includes methods of communications, oversight and controls, such as transparency and disclosure, self-limiting rules, and formal planning. The second category includes institutional structures and outside relationships, including hierarchical and internal control mechanisms, election mechanisms, the right to sue under the law, market enforcers, and competitors. The third category includes private and public sector organizations such as government entities and international and technical organizations.


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Tamar Frankel Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-3773

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Report to the Markle Foundation (, July 12, 2002, and also available on their website at

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