Board minutes on Telnic WHOIS Proposal

[Dan Krimm]

At 1:16 AM +0700 10/22/07, Norbert Klein wrote:

 - what I am often surprised is that governments (or their
>GAC representatives) who do not share the Canadian government's opinion
>you quote - are quiet in the open GAC meetings and do not say what they
>said five minutes ago over a cup of coffee.
>
>Why is it possible that there is not more open sharing of disagreement
>WITHIN GAC about some of these issues? I try to talk to some people
>privately, but what would help would be that they speak openly about
>their view of adhering or violating their national laws.


The one thing that most importantly distinguishes GAC from other advisory
committees (ACs) and supporting organizations (SOs) is that individuals who
sit on GAC are official representatives of their respective (if not
necessarily respectable) governments.

 ** One should *not* underestimate how important this is.  It is *huge*. **

Whatever their individual opinions, they are there to officially represent
the positions of their governments, which are mostly determined by others
in their governments.  This is huge, in terms of negotiating dynamics.
They are *ambassadors*, not 'deciders' or even 'negotiators'.  They
generally do *not* have significant policy-formulation discretion or
influence within their own governments, above and beyond perhaps serving to
educate the real deciders in their governments about what is going on at
ICANN/GAC.

GAC has elements of genuine "public" political power involved in it (which
can help to understand why GAC often has to work very hard to finesse the
appearance of "consensus" by constraining itself to carefully studied vague
wording to smooth-over the inevitable irresolvable differences), contrasted
with the special interests represented by the lobbyists that participate on
the SOs and ACs.  (Yes, even NCUC and ALAC represent "special interests"
though I think we can justly claim to represent *much* broader
constituencies than the other SOs and ACs.  Especially considering that
small businesses, sole proprietorships and freelancers are probably not
well represented on the BC.)

Of course, among the various governments in GAC (and in other international
political venues), some implicitly stake claims on being "more equal than
others" according to such "external" measures as military and economic
power, and consequently the GAC is not in reality a congress of equals,
given how much leverage can be expected to occur behind the scenes and
outside the ICANN/GAC venue per se.  (And of course, none of this would be
included in ICANN's "transparency" processes, because it would not be
engaged within ICANN's formal procedures.  It's all "off-list" and frankly
we have no way of knowing the full extent of it.)

This is part of why ICANN's policy-decision structure is so peculiar.  In
other genuinely international treaty organizations (such as WTO or WIPO or
other UN-related venues), civil society is making inroads into direct
participation in the form of regular formal interventions, etc.  If GAC is
"the future of political power" at ICANN (as it seems to be endeavoring to
reach), then the various constituencies currently located in the SOs and
ACs must have the ability to intervene directly in GAC deliberations.  GAC
certainly seems to feel that is has the right to speak to any policy
processes being engaged by the SOs and AC.

If GAC is intended merely as an advisory body with no genuine policy-making
weight, that's one thing, but GAC appears to be imposing itself in a way
that it expects to have powerful (if informal, so far) veto power over
policy at ICANN.  The informality of this setup works against formal
procedures of accountability at ICANN generally.

While this may work to the advantage of those governments that influence
GAC the most, it is not to the advantage of the general public.  One thing
we've learned about governance in the centuries of experimentation is that
without formal structures of accountability in policy processes,
informality undermines the (formal) rule of law by replacing it with the
(informal) rule of humans.

Dan