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ICANN and the GAC - Lessons Learned Since Cartagena

R. Shawn Gunnarson

Experience is the best teacher. In the interest of capturing lessons learned (and avoiding the repetition of hard experiences needlessly), it is worth highlighting what the interactions between the ICANN Board and the Governmental Advisory Committee (GAC) since Cartagena have taught.

• Face-to-face meetings matter. Board and GAC members repeatedly said how productive and important face-to-face meetings were for resolving their differences. That Brussels was their first substantive face-to-face meeting was unfortunate, especially given years of unresolved conflicts over new generic Top-Level Domains (gTLDs). Brussels shouldn't be a one-time event. Perhaps the Board should consider requesting a face-to-face meeting if GAC advice still conflicts with a Board determination after an exchange of written communications and a regularly scheduled meeting.

• Score cards work. The GAC's brainstorm proved to be a concrete way of sorting out the complex issues surrounding the introduction of new gTLDs. As it evolved, the score card was most useful when it visually juxtaposed the Board and GAC positions. Updating it to reflect each day's changes, perhaps in a redline-strikeout format, would make the score card an even more useful tool for resolving future disputes.

• Physical arrangements make a difference. The meeting room in Brussels mistakenly placed the Board and GAC chairs at the front of the room, with the rest of the participants in the audience. It was awkward for participants to talk to each other through a chair at the front of the room, rather than directly. San Francisco got it right. Board/GAC meetings there were scheduled in a large room where the participants' seating was arranged in the shape of a horseshoe. That arrangement should be the model for all Board/GAC meetings in the future.

• Additional translation services might help. English is the working language of ICANN meetings, and that appears to suit Board members and most GAC members for now. But the challenges of functioning in the highly technical environment of ICANN meetings are proving to be a strain for some. Twice during the Brussels meeting GAC members had to request the Board's responses in writing so that they could be translated and reviewed in a form with which the members were comfortable. As an organization of stakeholders from around the globe, ICANN should make translation services routinely available for participants who are uncomfortable functioning in English. Waiting for a request from the GAC or the Board might not be enough to provide the needed assistance. The current opt-in should be exchanged for an opt-out: ICANN should offer simultaneous translation in the United Nations' official non-English languages — Arabic, Chinese, French, Russian, and Spanish — at any Board/GAC meeting (or any other meeting thought to present similar issues for participants) unless the GAC chair specifically informs ICANN beforehand that particular languages are unnecessary at a particular meeting.

• Permanent staff support may be essential. GAC members need institutional resources to perform their bylaws-mandated responsibilities. ICANN produces too much paper for busy government officials to review and absorb at the necessary level of detail. Communication too easily gets mired in misunderstanding because GAC members find it difficult to understand the Board's perspective, and the Board finds it difficult to understand the GAC's. Employing a permanent ICANN staff member with experience in the government and private industry for these and similar tasks may be essential to the GAC's success. This senior GAC liaison should be equally responsible to the GAC and the ICANN Board and should receive sufficient budgetary resources to facilitate intersessional communication between the two as needed.

Experience since Cartagena has also prompted two questions worth reflecting on and discussing further.

First, it became evident during the long Board/GAC discussions that there isn't an effective tool for directing those discussions toward the bylaws-mandated activity of "trying, in a timely and efficient manner, to find a mutually acceptable solution." (Bylaws, art. XI, § 2.1(j)). Once the score card is in place, a real difficulty lies in concentrating the discussion on identifying "a mutually acceptable solution." Prioritizing and delegating are crucial in this effort. Classifying each issue as a 1A, 1B, or 2, for purposes of gauging the degree of conflict, worked well. Additional improvements might be found by (1) limiting public discussions to the problem of moving items marked 2 to 1B or 1A; (2) delegating to staff further work on items marked 1B; and (3) editing the score card after each session to reflect how the day's discussions and written staff proposals have reduced the remaining conflicts.

Second, determining when to seek the GAC's advice and how best to incorporate it into ICANN's policy-making is unclear. The bylaws say little on these points. (Rules governing ccNSO policy-making are the single exception, and the government-centered orientation of GAC members and ccNSO operators makes that exception unilluminating for the rest of ICANN's policy-making universe.) The Accountability and Transparency Review Team (ATRT) recommended seeking the GAC's advice earlier in the process, but taking that recommendation to extremes would place the GAC in the policy-making deliberations of every other Supporting Organization (SO) and Advisory Committee (AC) while denying any other group the corresponding opportunity to participate in the GAC's deliberations. On the other hand, getting the GAC involved too late creates the appearance of giving it an effective veto and invites the kind of eleventh-hour conflict that ICANN has just passed. Instead, SOs and ACs should be encouraged to consult with the GAC when considering proposals that have manifest public policy implications, but that consultation should remain voluntary to preserve their integrity as policy-making bodies. Once a proposal has been presented to the Board for approval, however, the Board should promptly seek the GAC's advice. Disputes should be worked out in the kind of good faith that characterized Brussels and San Francisco. And the Board should avoid passing any resolution on matters under consideration by the GAC until it has published its advice. Regular and meaningful engagement between the Board and the GAC on these terms would, in time, tend to establish a sturdier relationship.

With these lessons in mind, events since Cartagena can be used to strengthen ICANN and its multi-stakeholder model of DNS management.

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie
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