Professor Michael Froomkin, who lectures in internet law, is reported as saying that when ICANN made rules for resolving disputes over domain names and proposing to establish new top level domains, it was acting as “an illegally sanctioned, unelected lawmaker”. Its original purpose was to oversee the technical management of the internet’s domain name system.
Froomkin said, “I envision class actions by those who believe their property rights in their domains have been violated.”
Such an action for judicial review may force the US Department of Commerce to respond and clarify the role of ICANN. The Department created ICANN in 1998 and vested it with the authority of the US Government. But it was not clear at this time whether the non-profit body was to function as a policy maker. If so, some argue that ICANN may be unconstitutional under US law, because only elected legislators can make laws.
If ICANN was not intended to make policy, then ICANN’s rules, notably the Uniform Domain Name Dispute Resolution Policy (UDRP) used by the World Intellectual Property Organisation (WIPO) and others, should be subject to a federal law which requires open meetings, published decisions and other democratic principles to which ICANN does not presently adhere.
Froomkin is reported as saying “ICANN is our first quango – and in the United States we have no place for quangos.”