Hybrid net: the regulatory framework of ICANN and the DNS

The Internet Corporation for Assigned Names and Numbers (ICANN) is responsible for the management and coordination of the internet domain name and address space, which are critical resources necessary for internet connectivity. Though international in reach since it cooperates with persons, organizations and governments in many countries, ICANN was set up as a private non-profit organization under California law. This article examines the role, legal nature and basis of ICANN and the domain name system (DNS). It first maps and analyses the various regulatory instruments underlying ICANN and the DNS. What emerges is that, very often several and different modes of regulation, both formal and informal, are required to address a particular issue satisfactorily. The article examines whether and to what extent these different types of instruments co-exist and interrelate as one coherent regulatory framework. To do so, this article draws upon Teubner’s notion of hybrid networks and makes an analogy with modern theories on how various sources of law apply within a legal system. In particular, it follows and builds upon Ost and van de Kerchove’s notion of network or ‘mesh’ regulation. To explain the contractual web at the heart *Postdoctoral scholar, Norwegian Research Centre for Computers & Law, Department of Private Law, University of Oslo, PO Box 6706 St Olavs plass, 0130 Oslo, Norway; Email: [email protected]. This article was written within the framework of the Igov2 project (http://www.jus.uio.no/ifp/english/ research/projects/internet-governance/), which is jointly funded by the Norwegian Research Council and UNINETT Norid AS. The author thanks Franck Dumortier from the Centre de Recherche Information, Droit et Société, University of Namur and my Igov2 project colleagues—Lee Bygrave, Tobias Mahler and Kevin McGillivray—who all commented on an earlier draft. 49 by gest on July 4, 2015 http://ijlirdjournals.org/ D ow nladed from of the gTLD namespace, Cafaggi’s notion of contractual networks is utilized.