When Bill Clinton addresses the 40th ICANN meeting in San Francisco in March 2010 he described Internet Governance as a process of "stumbling forward". Stumbling is good, he said, as long as it goes forward. Five ICANN meetings later — in the meantime ICANN adopted the new gTLD program, got nearly 2000 applications for Top Level Domains (TLDs) and has a new CEO — the "stumbling forward" goes into the next round. Moving closer to the broadening of the Domain Name System (DNS) we are witnessing a power struggle about the right to have the last word if it comes to decisions about new TLDs.
Listening to the debates in ICANNs Governmental Advisory Committee (GAC) and reading the GAC Toronto Communique one can notice a strong shift in its tone. What we had so far only in oral presentations of some GAC members we have now in the written GAC Communique: It is the GAC which reserves its right to have the last word in ICANNs decision making process, at least with regard to issues of "public interest". But what is not "public interest" in the ICANN context? Is this stumbling forward in the right direction?
The legal relationship between the ICANN Board and the GAC was problematic from the very beginning of ICANNs existence. The original 1998 bylaws defined rather vague the interaction between GAC and Board and just said that the Board will consider GAC advice. The board was free to reject any GAC advice without any consequences. In the reform process of 2002 the interaction between the Board and the GAC was described in a more detailed procedural way, but left the final decision making capacity in the hand of the ICANN Board.
Formally that is the situation also today. But practically one can observe a permanent wrestling about the right to have the last word and a silent powershift towards a growing role of the GAC. Meanwhile the joint GAC-Board discussion attracts more participants than regular ICANN Board meetings.
On the one hand this is good when governments play more active with their "respective role" in policy development and decision making in the networks of ICANNs multistakeholder governance model. On the other hand there is a risk that misunderstandings of the multistakeholder model will lead to fall back into a hierarchical constellation with a single decision maker on the top.
Remember the 2005 Internet Governance Definition, provided by WGIG and accepted by 180 UN member states at WSIS II: "Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet". Does ICANN match this definition and has it developed already "shared decision making procedures"? This is certainly a big challenge, needs creativity and is not easy to implement. There is no model. But it is a big chance for all stakeholders within ICANN to make a contribution to an innovative 21st century policy model.
How fits the GAC Toronto Communique into this innovative process? Interestingly, the GAC, after years of debate around the legal meaning of a "GAC Advice", has now a more differentiated approach which could lead to something like a "layered system" for its formal interaction with the Board. The GAC Toronto Communique uses three categories: "GAC encouragement", "GAC request" and "GAC advice".
One interpretation could be that a "GAC encouragement" is a nice hint from governments what the Board should do to please the GAC. A "GAC Request" means that the GAC expects a reply. And a "GAC advice" is obviously seen now as a legally binding order and not a non-binding recommendation open for discussion. Is this is an innovative contribution to the development of "shared decision making procedures" within and around ICANN? And how this will affect the relationship between the GAC, the ICANN Board and the SOs and ACs, in particular the GNSO with its various constituencies?
Here are some more detailed observations from the GAC Toronto Communique which will probably help to clarify the question what "stumbling forward" could mean in the future:
1. It was good to have a High Level GAC meeting, even if the level of the meeting was not so high. Nevertheless, the subject "Preserving and Improving the Multistakeholder Model" was very good. And it was even better that all present governments supported the model, including China and Russia. Unfortunately there are no conclusions or recommendations as outcome of the meeting. And there is no clarity what "improving the Multistakeholder Model" means in the eyes of the GAC. Do you remember the debate in the UN about the future of the IGF when governments agreed on the need to "improve the IGF" but disagreed what "improvement" means in detail? For some GAC members "improving the multistakeholder model" within ICANN means obviously to move decision making power from the Board to the GAC. It is very questionable that this would be "stumbling" in the right direction.
2. It is good that the GAC is obviously considering to join ICANNs open and transparent bottom up policy development process at an early stage (GAC Early Engagement / GACEE). This could be helpful and avoid unneeded controversial discussion on outcome of PDPs when an issue has reached already a certain stage close to final acceptance. But how GAC involvement will be managed formally. Will there be a GAC liaison in all drafting teams? And what will be the status of such a liaison? Will the GAC liaison just sit there as an observer, reporting back to the GAC? Or will it be an active member who can speak on behalf of the 120+ GACies? And will the OK of the GAC liaison be needed to reach "rough consensus" in a drafting team (which would give the GAC a "veto right" for everything)? Another good field for reaching progress by stumbling forward.
3. It is good that the GAC invites its members to handle "early warning" against individual new gTLD applications on the basis of a "collaborative and cooperative approach". Let´s wait and see how many cases can be settled via such an approach and how many cases will remain on the table which will then lead to a "GAC advice". At this stage it sounds rather strong if the GAC advices the Board now "that it is necessary for all these statements of commitment and objectives to be transformed into binding contractual commitments, subject to compliance oversight by ICANN". What will happen with concrete cases where both sides have good arguments and the USR will not be able to help? Who will make the final decision?
4. It is also good that the GAC is looking towards the production of a list for names of IGOs which should get special protection in the new gTLD program both under the 1st and the 2nd level. To use the criteria for the .int TLD is okay. It is as it was in the early days of the DNS when Jon Postel argued that he is not in a position to decide what a country is and he referred to an existing list (ISO 3166) before handing out delegations to the management of ccTLDs.. To use existing lists is a workable and useful methodology as long there is broad agreement that the proposed list is the right one. However the GAC does not include International Non-Governmental Organizations (INGOs) in its Toronto Communique. Has this any meaning? The GNSO Council proposed to include both IGOs and INGOs in the planned PDP. Hopefully this will not create another misunderstanding among various ICANN constituencies.
5. The IOC-RedCross issue is obviously not a misunderstanding, this is a big controversy. In its Toronto Communique the GAC is seeking "clarification from the GNSO as to its rationale for initiating a PDP" and it adds that its advice does not need a PDP but just implementation. This is controversial indeed. There is no external legal study which proofs the position that the status of those two organizations is unique under existing national and international law. There are other non-governmental organizations which have a similar legal status like the Red Cross and the IOC and would also fall under such a categorization. Insofar the GNSO Council was very wise to argue, that before doing any policy decision it would be better to have a final legal clarification. Based on such a legal clarification a coherent policy — in close collaboration between GNSO Council, ICANN Board, GAC and the broader community - should be developed which would give the two mentioned organizations and others the needed protection to avoid any misuse which would be contrary to the public interests. A simple "GAC advice" does not constitute the needed legal clarification. More work need to be done. BTW, this could become an interesting case how an open and transparent bottom up PDP within ICANNs multistakeholder model is executed in a triangular relationship between GAC, ICANN Board and GNSO Council with its seven (commercial and non-commercial) constituencies organized in a contracted and non-contracted house under the condition of an open public comment environment.
6. Another field where ICANN can learn to stumble forward is not mentioned in the GAC Toronto Communique. There is no reference to the RAAs and the Whois debate. However the Toronto meeting made clear that there is a big controversy about the understanding of privacy and data protection and other human rights related issues in the DNS and the Whois database among various ICANN constituencies, including the GAC. GACs role here is essential. In a best case scenario individual GAC members would consult at home before going to an ICANN meeting both with national state agencies for law enforcement and the data protection commissioner to represent a balanced "country´s position". But a lot of observers have the impression that such a "national dialogue" on equal footing among law enforcement and data protection agencies is still in its early stage in many countries and the actual debate is dominated by the legitimate requests from law enforcement. ICANNs Articles of Incorporation states that ICANN will operate within the framework of international law and national legislation. And this includes also national privacy and data protection legislation. If the Article 29 Working Party of the EU argues that proposed changes in the RAA are "unlawful" under existing European law, than ICANN has a problem. It is certainly correct that the Article 29 Working Party is an advisory body and not the EU Council of Ministers, but the facts laid out in the letter of the Article 29 Working Party are consistent with existing European law. So what to do? To introduce a differentiated system could lead to conflicts with rules for fair competition among registrars. The situation is as complicated as complex and probably the GAC decision to be silent at the moment is the best the GAC can do. But the issue will not go away. And there is another question which is not yet discussed in this context: What about registrars serving ccTLDs who do not have a contract with ICANN?
We live in interesting times and a lot have to be done :-)))
By Wolfgang Kleinwächter, Professor for Internet Policy and Regulation at the University of Aarhus
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