In Print: Volume 89: Number 4
ICANN’s Escape from Antitrust Liability
By Justin T. Lepp
89 Wash. U. L. Rev. 931 (2012)
(PDF)
The power to control the architecture of the Internet is the power to control communication, commerce, and vast quantities of personal data. That power is wielded primarily by an American non-profit organization called the Internet Corporation for Assigned Names and Numbers (ICANN). Although one of ICANN’s professed purposes is to promote competition in the markets for domain names and domain name services,it has failed to do so effectively. On the contrary, many of ICANN’s actions have harmed competition.
This Note will examine ICANN’s conduct through the lens of American antitrust law and evaluate why ICANN has largely escaped antitrust liability. Part I describes the technical background of the Domain Name System (DNS), the role that ICANN plays in the administration and governance of the DNS, and the basic principles of antitrust law that regulate the domain name marketplace. Part II details the antitrust allegations against ICANN and explains how ICANN’s actions may be anticompetitive. ICANN has used its unilateral control over the DNS to restrict competitive bidding, influence prices, and maintain entry barriers in the domain name marketplace. Part III explains why ICANN’s conduct has received little antitrust scrutiny. ICANN’s unusual and complex decision-making process and its close relationship with the United States government each contribute to the reluctance of courts and antitrust enforcement authorities to examine ICANN’s conduct. Unless ICANN receives closer attention, all participants in the domain name marketplace, from businesses to consumers, will continue to pay higher prices, and innovation will continue to be stifled.
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