CircleID

We all may have breathed a sigh of relief when the ICANN Governmental Advisory Committee (GAC) and the Board concluded their eleventh-hour negotiations on new generic Top-Level Domains (gTLDs) with some measure of success, but we can all agree that panicked policymaking is, at best, less than optimal. ICANN needs to integrate GAC input more effectively.

The Final Report recently issued by the Joint Working Group (JWG) of the ICANN Board and the GAC contains several thoughtful and productive recommendations.¹ It helps to clarify that the problem of integration comprises several obstacles, including misunderstandings about the GAC as an organization of nation-state representatives, the restriction on GAC advice in ICANN's bylaws and the GAC's Operating Principles, and the need for equitable support.

Misunderstandings about the GAC continue to form (and deform) its interactions with the Board and with the ICANN community at large. An especially significant misunderstanding centers on the GAC's nature as an organization of sovereign states. As the JWG pointed out, "the views of a single government cannot be substituted for the views of another government or for the GAC."² JWG went on to explain that "[e]ach GAC member is responsible for representing their own government's views and each GAC member participates in the GAC and in the broader ICANN community deliberations in their official capacity as the representative of their respective governments."³ The JWG rightly noted that "[t]his representational function appears to differ from other SOs and ACs, whose members often participate in deliberations in their personal capacities."⁴

Members of the GAC may speak or act only as representatives of national governments. Any effort to improve relations between the GAC, the Board, and the rest of the multi-stakeholder community must start with the recognition that the GAC's capacity to interact with the community through its individual members is sharply limited by the principle of national sovereignty.

JWG's recommendation to "[c]onsider experimenting with 'reverse' liaisons, with each SO and AC identifying members of their respective constituencies to liaise with the GAC"⁵ holds real promise for integrating the GAC while respecting the principle of national sovereignty. No other SO or AC labors under the restrictions of national sovereignty borne by the GAC; each can delegate liaisons to meet with the GAC, where they can solicit information from the GAC as a whole and inform the GAC of their organizations' policy positions.

Another obstacle to integrating the GAC into ICANN's policymaking apparatus is the limitation on its authority to deliver advice. Both the ICANN bylaws and the GAC's own Operating Principles authorize the GAC to deliver advice only to the Board.⁶ JWG underscores this point,⁷ stating that "the Bylaws refer to the GAC advising the Board, without explicitly referring to GAC inputs into broader policy development."⁸

Limiting GAC advice in this way fails to account for ICANN's iterative policymaking⁹ and for the fact that the iteration often occurs outside the Board's purview in ACs and SOs. Although government representatives should be accorded appropriate respect within ICANN's multi-stakeholder community, preserving the exclusivity of the GAC's advice-giving relationship with the Board appears to come at the expense of its participation as a full and active member of ICANN's stakeholder community.

Amendments to the bylaws and GAC Operating Principles should be considered, clarifying that the GAC may deliver advice to SOs and ACs as well as the Board. This measure was not recommended by the JWG, but it is intimated by the Final Report's acknowledgment of restrictions on the GAC's authority to communicate its advice.

Integrating the GAC more effectively into ICANN's multi-stakeholder community also requires reasonable support. The JWG recommends that "ICANN provide the GAC with support comparable to that provided to other SOs and ACs."¹⁰ In particular, it calls for enhanced translation and travel support. Parity in funding and support are essential to ICANN's identity as a multi-stakeholder organization whose impact is global.

A few of the JWG's recommendations appear to promise the greatest impact in resolving the problem of integrating the GAC more effectively into ICANN's policy-making processes:

• Experiment with reverse liaisons, where each SO and AC assigns members from their respective constituencies to liaise with the GAC.
• Clarify that the GAC liaison is not the only mechanism for informing the GAC of the Board's interest in seeking its views.
• Create a Board liaison to the GAC.
• Assign a senior ICANN staff member to coordinate with the GAC liaison.
• Encourage ICANN policy staff to interact with the GAC and its members more routinely.
• Consider amendments to the ICANN bylaws and GAC Operating Principles clarifying that the GAC may deliver advice to SOs and ACs as well as the Board.
• Create a register indicating whether and how particular GAC advice was taken into account by the Board.
• Institute a process for the Board to regularly notify the GAC of proposals that contain public policy issues.
• Increase the number of face-to-face meetings between the Board and the GAC.

Implementing these recommendations would improve the relationship between the Board and the GAC — a relationship essential to ICANN's success.

¹ Internet Corporation for Assigned Names and Numbers (ICANN) Board of Directors/Governmental Advisory Committee (GAC) Joint Working Group (JWG) on the Review of the Role of the GAC, Final Report, June 19, 2011, available at http://www.icann.org/en/committees/board-gac-2009/board-gac-jwg-final-report-19jun11-en.pdf.

² Id. at 5.

³ Id. at 5-6.

⁴ Id. at 6.

⁵ Id. at 10.

⁶ See Bylaws for Internet Corporation for Assigned Names and Numbers art. XI, § 2.1(i) (as amended June 24, 2011); Internet Corporation for Assigned Names and Numbers, Governmental Advisory Committee (GAC) Operating Principles, Principle 2 (rev. Mar. 2010), available at http://gac.icann.org/system/files/ GAC_Operating_Principles_1.pdf.

⁷ See Final Report at 2.

⁸ Id. at 15.

⁹ Id.

¹⁰ Id. at 14.

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

Related topics: ICANN, Internet Governance, Policy & Regulation