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Concerns About ICANN's Bylaws Shouldn't Bog Down Board/GAC Discussions

R. Shawn Gunnarson

The Brussels meeting between the ICANN Board of Directors and the Governmental Advisory Committee (GAC) became contentious over what constitutes a "bylaws consultation," what that designation means, and whether future meetings between the parties should be labeled as such. At the risk of going over familiar ground, it may be useful to review what the bylaws say about ICANN's duty to consult with the GAC. Those provisions help clarify the legal status of the meetings in San Francisco and suggest that debates about formal designations can be eliminated as pointless. Actually, the bylaws invite the Board and the GAC to resolve their differences without such flummery.

Principal duties of the GAC and the main terms of its relationship to the Board are spelled out in article XI of the bylaws.1 There the GAC is directed to "consider and provide advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues."2 The bylaws leave the GAC discretion in carrying out its mandate. It may "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies."3

The Board bears a corresponding duty to "notify" the GAC chair "in a timely manner of any proposal raising public policy issues on which it or any of ICANN's supporting organizations or advisory committees seeks public comment, and shall take duly into account any timely response to that notification prior to taking action."4 Further, its advice "on public policy matters shall be duly taken into account, both in the formulation and adoption of policies."5

Disputes between the Board and the GAC are specifically covered. When the Board "determines to take an action that is not consistent with" the GAC's advice, it must "so inform the Committee and state the reasons why it decided not to follow that advice."6 The bylaws obligate the Board and the GAC to "then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution."7 If a solution is elusive, the Board must "state in its final decision the reasons why the [GAC] advice was not followed, and such statement will be without prejudice to the rights or obligations of [GAC] members with regard to public policy issues falling within their responsibilities."8

What might be confusing is that subsections (j) and (k) contemplate two different stages of a dispute resolution process. Subsection (j) describes the first stage, when the Board "determines to take an action that is not consistent with" the GAC's advice.9 In that event the Board must inform the GAC of the conflict, explain why it did not follow the GAC's advice, and "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution."10 When no solution can be found subsection (k) applies and the Board must explain in its final decision "why the [GAC's] advice was not followed."11

In a nutshell, the bylaws require the GAC to provide advice on matters of public policy and the Board to notify the GAC of proposals that implicate such matters. If the Board decides to disregard the GAC's advice, it must follow a two-step process that (1) requires both parties to work for "a mutually acceptable solution" and, failing that, (2) requires the Board to explain in its final decision why it decided not to follow the GAC's advice.

Notice what the bylaws do not say. They say nothing about formally designating a particular meeting to be in satisfaction of the dispute procedure. They say nothing about how long the parties must engage in a good faith effort to resolve their conflict. And they are silent on the GAC's authority, other than stating its obligations to provide advice and to work with the Board to resolve any conflicts before the Board issues a final decision.

This reading of the bylaws helps clarify the legal status of the upcoming meeting between the Board and the GAC in San Francisco. The GAC has clearly offered its advice on new gTLDs in numerous communiqués over the past three years.12 It is equally clear that the Board has so far declined to adopt certain parts of that advice. And the Brussels meeting can be readily characterized as an effort to seek in good faith "a mutually acceptable solution."13 Neither the Board nor the GAC has declared that effort at an end. To the contrary, both have indicated a willingness to meet over two days in San Francisco to try to resolve the rest of the GAC's concerns. Given all this, the San Francisco meeting falls within stage one of the dispute resolution process prescribed by the bylaws.

The bylaws also suggest that debates over the designation of the San Francisco meetings as a "bylaws consultation" should be eliminated as pointless or counterproductive. The Board has unquestionable authority to issue a "final decision"14 when it chooses. Fear of reaching that outcome too soon may explain why some members of the GAC objected to the Board's designation of the meetings as a "bylaws consultation." Confusion and concern were needlessly heightened by Board's January resolution to "trigger" the bylaws consultation at the San Francisco meeting.15 The bylaws do not require the Board to designate a particular meeting as the occasion when the board/GAC conflict is to be resolved or declared irresolvable. Nor does the absence of a formal designation detract from the Board's authority to issue a final decision despite lingering conflicts with the GAC. Anxiety that the Board might cut short discussions on new gTLDs before the GAC has made its case presents questions not of legal authority, but of political judgment.

The discussions should continue, but without irrelevant talk about formal designations. Brussels marked the first substantive face-to-face meeting for the Board and the GAC and the results were encouraging. Every effort now should be bent on finding solutions that both parties can live with — for the good of the entire ICANN community.

1 A consultation requirement is also found in article III, § 6.1(c). Discussion of it is omitted, however, because it applies narrowly and does not contain the dispute resolution procedures described in article XI, § 2.1.

2 Bylaws for Internet Corporation for Assigned Names and Numbers, art. XI, § 2.1 (as amended Jan. 25, 2011) ("Bylaws").

3 Id. at art. XI, § 2.1(i).

4 Id. at art. XI, § 2.1(h).

5 Id. at art. XI, § 2.1(j).

6 Id.

7 Id.

8 Id. at art. XI, § 2.1(k).

9 Id. at art. XI, § 2.1(j).

10 Id.

11 Id. at art. XI, § 2.1(k).

12 See GAC Communiqué — Cartagena, at 2-3 (Dec. 9, 2010), available at http://gac.icann.org/system/files/ Cartagena_ Communique.pdf (referring to communiqués since October 2007 where the GAC advised the Board of its concerns with the new gTLD process).

13 Bylaws at art. XI, § 2.1(j).

14 Id. at art. XI, § 2.1(k).

15 ICANN, Adopted Board Resolutions, Resolution 2011.01.25.26 (Jan. 25, 2011) ("the ICANN Board hereby triggers the consultation as provided for in ICANN Bylaws ... which shall take place on Thursday, 17 March 2011, during the ICANN SV/SF meeting").

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie
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Add to your excellent presentation of the Antony Van Couvering  –  Mar 12, 2011 8:06 PM PDT

Add to your excellent presentation of the bylaws a further point: the initiation of policy belongs to neither the Board or the GAC, and whatever else the bylaw-mandated consultation may be, it is not a policy-making venue.

Antony

Thank you R. Shawn Gunnarson  –  Mar 13, 2011 7:47 AM PDT

I'm glad you enjoyed the piece, Antony. Your point is an interesting one, though it is somewhat hard for me to see the practical difference between the bylaws-mandated process of seeking a "mutually acceptable solution" for the differences between the board and the GAC and formulating policy ab initio, such as the SOs do. In either event, the board holds the authority to approve, modify, or reject particular proposals. Would you agree that so long as the board/GAC discussions focus on resolving their differences over the introduction of new gTLDs, they're on the right track?

We came to the same conclusion Kieren McCarthy  –  Mar 13, 2011 3:19 PM PDT

We looked at this issue in depth as well - including the process that dot-xxx has already been through wrt the Board disagreeing with the GAC.

We arrived at the same conclusions: there is nothing currrently there that makes all the talk about bylaws-mandated consultation more substantial than smoke in the air.

There *may* be documents that staff have produced and *may* have shared with the GAC about building a process but there is no mention of them beyond some Board resolutions saying they should be done.

All in all, it seems like the talk is getting in the way of… well, talk.

Bye Bye Bylaws: Legalistic proxies confuse vital ICANN process
http://news.dot-nxt.com/2011/03/10/bylaws-mandated-nonsense

Kieren

Happy Talk R. Shawn Gunnarson  –  Mar 14, 2011 6:40 AM PDT

I'm glad we agree, Kieren. Let's hope this week's talks are as productive as everyone hopes.

Best,

Shawn

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