ICANN and Antitrust
A. Michael Froomkin & Mark A. Lemley | 2003 U. Ill. L. Rev. 1
The Internet’s smooth functioning depends on the domain name system (DNS), which allows users to enter an address into their browser and be directed to the appropriate web site or e-mail recipient. In 1998, the De-partment of Commerce (DoC) delegated effective control over the DNS to a private, not-for-profit corporation, the Internet Corporation for Assigned Names and Numbers (ICANN). Various aspects of ICANN have been heavily criticized by commentators. In this article, Professors Froomkin and Lemley address the previously neglected issue of whether ICANN and its policies violate U.S. antitrust law.
Professors Froomkin and Lemley begin by analyzing whether ICANN would be immune from antitrust scrutiny under the state action doctrine. This would be unlikely, they conclude, because there has been no clear articulation of policy nor active supervision by the government. The au-thors then consider the merits of four potential antitrust challenges: that the DNS and top level domains such as .com are essential facilities to which ICANN must give open access; that ICANN’s refusal to accredit registrars affiliated with alternative roots is an act of monopolization; that ICANN’s requirement that registrars adhere to a uniform dispute resolution policy for trademark disputes is an illegal cartel; and that VeriSign’s “Waiting List Service,” approved by ICANN, is an exclusive dealing arrangement with anticompetitive consequences. Additionally, since ICANN is not a government actor, the authors warn that those who lobby ICANN could also be liable for any antitrust law violations.
Professors Froomkin and Lemley conclude that delegating extensive policy-making authority to ICANN without providing any means of accountability causes unanticipated antitrust problems. If ICANN is subject to antitrust law, the authors assert, it will have to reevaluate its policies of excluding alternate roots and requiring registrars to adopt its uniform dispute resolution policy. Professors Froomkin and Lemley ultimately conclude that the U.S. government should either assume a more active role in setting domain name policy or, in the alternative, let the market operate unfettered.