GAC-Board meeting in Brussels

[Nicolas Adam]

Thx

On 3/4/2011 9:49 AM, William Drake wrote:
> Hi
>
> On Mar 1, 2011, at 1:28 AM, Milton L Mueller wrote:
>
>> Would appreciate a report on your impressions.
>
> Wasn't expecting to be writing one and haven't had time, but ok.. I 
> have a ton of work to do before leaving town Monday for two weeks, so 
> this will be more a matter of sharing some impressions than a full and 
> systematic report.  But hopefully it’s useful nonetheless, and Avri 
> and others who attended physically or remotely can add their thoughts 
> as well.  In addition, one imagines there will be some blogging on 
> Circle ID and related sites as soon as people are able to digest the 
> several hundred page transcript.  In addition, in a couple days ICANN 
> should be providing a report with the board’s assessment of the 
> current state of play regarding areas of (dis)agreement with the GAC.
>
> Before the meeting, the GAC provided a “scorecard” (a somewhat 
> revealing term) of its consensus positions on 12 new gTLD topics on 
> which it was at odds with ICANN 
> http://www.icann.org/en/topics/new-gtlds/gac-scorecard-23feb11-en.pdf.  The 
> scorecard built on the GAC’s Cartagena communiqué and new member 
> inputs, including the controversial US doc discussed here previously.  
> The purpose of the meeting was to talk through the 12 and see on which 
> the differences could be narrowed or reconciled.  The hope was to take 
> items off the table, leaving only the most difficult ones to be 
> addressed by a “bylaws consultation” in SF.  There the board could 
> formally tell the GAC that it does not accept its advice on any 
> irreconcilable items and would have to provide a rationale for its 
> decisions.
>
> From the outset, both sides worked to establish a cooperative 
> atmosphere and lots of nice words were exchanged etc.  But there were 
> clearly tensions percolating below the surface that would periodically 
> bubble up in certain exchanges, which occurred with increasing 
> frequency as we moved into the second day and spilled over into an 
> unplanned meeting on the third morning.  Several overarching problems 
> became evident:
>
> First, there was a lot of mutual frustration about the process leading 
> up to the meeting.  Many in “the community” were miffed that the GAC 
> had waited to formally put down its markers until to the 11th hour, 
> when the launch of new gTLDs was thought to finally be imminent.  
> Conversely, the GAC maintained that it had in fact been providing 
> “advice” on its concerns since at least the March 2007 release of its 
> new gTLD Principles, but that ICANN had simply chosen not to take this 
> seriously.  Irrespective of whether you think one or the other side is 
> right about that, clearly there hasn’t been enough good communication 
> and coordination and this disconnect shouldn’t have been allowed to 
> fester.
>
> Second, each side seemed to feel that the other didn’t understand its 
> constraints and procedures.  On the one hand, board members would note 
> that many parties had investors waiting impatiently and were facing 
> financial challenges, that the community had spent years working on 
> the Applicant Guidebook and forging difficult consensuses, and that 
> people would find it difficult to accept this or that advice that ran 
> counter to the AG or introduced additional delays.  On the other hand, 
> GAC members would argue that it’s just not possible for them to work 
> in a different and quicker manner since they have various work 
> responsibilities and participating in GAC is just one of these; and 
> that they have to coordinate at each step of the way both internally 
> with their relevant ministries and other actors, and then externally 
> with each other.
>
> Third and relatedly, the two sides were differently enabled to engage 
> in bargaining.  The ICANN model involves putting the famous “good 
> people” in board slots and giving them the latitude to make judgments, 
> engage in on-site problem solving via break-out groups and other 
> techniques, adapt their positions to forge compromises, etc. The 
> government folks insisted they can’t work that way, they come with 
> fixed consensus positions and then need to take each new bit from the 
> other side back to their capitals and into the GAC for 
> re-coordination.  As such, they couldn’t give definitive statements of 
> agreement to board counterproposals, which left some board members 
> palpably frustrated.  One might add that it also seemed clear the 
> board was better prepared and more focused with respect to the 
> substantive issues than many of its counterparts, which is not too 
> surprising given their respective backgrounds, work responsibilities, etc.
>
> Fourth, there were clearly very different expectations about what 
> happens next.  The Board had announced in January that it expected to 
> hold an official “bylaws consultation” in SF at which it presumably 
> could announce its final conclusions on what GAC advice it was or 
> wasn’t accepting with an eye to launching the round thereafter.  
> Indeed, some members argued that this session meant that they were 
> already in a bylaws consultation.  Key GAC members said they regarded 
> all this as premature and a bit offensive, i.e. as an effort to push 
> toward closure and a launch without fully hearing the GAC out and 
> taking its views on board.  Accordingly, they announced they didn’t 
> want SF to be labeled a formal bylaws consultation.  This issue led to 
> a lot of heated exchanges on the last morning, so much so that various 
> speakers felt moved to say please let’s pull back from the brink and 
> not end in acrimony, etc.
>
> Finally, there were of course significant substantive differences on 
> the individual issues.  Scanning the #ICANN twitter feed would give NC 
> members a good sense of how at least some vocal observers viewed the 
> GAC positions, which is to say, not too positively.  Not being 
> inherently and implacably anti-government, and recognizing that 
> “community positions” can bear a substantial imprint of corporate 
> power and self-interest, I guess my take on these would be a bit 
> kinder and more mixed than some other folks’.  Some of the GAC 
> positions undoubtedly ranged from ill-considered to terrible, or 
> seemed like state power grabbing or pure reflections of corporate 
> lobbying.  Some were just a bit muddled, maybe not fully thought 
> through or of questionable ease of implementation etc.  But some were 
> also reasonable efforts to promote public or national interest 
> objectives that I’d be astonished and sometimes annoyed for them not 
> to advance.  People can disagree about the balance between these and 
> other aspects in any given instance…
>
> In any event, despite these tensions, it should be said that the 
> meeting managed to make some significant progress on a number of 
> specific points, and that overall the participants were able to come 
> away seeing this as a constructive engagement on which to build.  
> There was unquestionably some convergence and increased mutual 
> understanding.  The GAC communiqué, which I just forwarded to the 
> list, reflects that feeling, and promisingly reiterates that GAC fully 
> respects the Board’s right under the bylaws not to accept its advice.  
> What it doesn’t say, but which must be weighing on a lot of minds, is 
> that pushing toward co-regulation will entail a lot of risks for GAC 
> members.  I asked a few whether they were really prepared to be 
> vetting hundreds of applications and for the heat they might take not 
> only for opposing some but, by implication, accepting the others, and 
> got rather downbeat responses.  Not sure I’d want to be in their shoes…
>
> Turning briefly from process and atmosphere to substance, the 
> methodology the board adopted was to assign each of the GAC proposals 
> (some of which contained multiple issues/elements) one of three 
> ratings: 1A), advice that it can easily accept and adopt; 1B), advice 
> it accepts in principle but thinks more work is needed to elaborate 
> and implement it; and 2) advice on which it just doesn’t agree with 
> GAC.   The 2’s would be the main challenge whenever a bylaws 
> consultation is consensually undertaken.  Per previous, ICANN’s 
> supposed to provide an overview of these ratings across the 12 issue 
> areas in the coming days, at which point it will be easier to consider 
> them in NCUC/SG.  I really can’t dig through the transcript right now 
> to try to pull out and list each rating, and anyway my recollection is 
> that PDT’s statements on at least some weren’t entirely clear and 
> definitive anyway.  But I can mention a few key bits of particular 
> local concern:
>
> On the objection procedures, the Board seems inclined to relent on the 
> requirements for governments to pay fees, at least under certain 
> circumstances, 1B.  Irrespective of what you make of the claim that 
> they can’t pay a company for services because they’re sovereigns etc, 
> I’d say if this gets a big bone of contention out of the way, give it 
> to them and ICANN can figure out how to deal with the financial 
> consequences.  On the GAC’s objection to being bound by determinations 
> of the ICC, to be honest I can’t find what the Board said in my notes, 
> hopefully Avri remembers…
>
>  On the procedures for the review of sensitive strings: as we know, 
> the seemingly draconian approach suggested in the US input doc was not 
> taken on board in the scorecard after some of the other governments 
> balked.  The scorecard says that any GAC member may raise an objection 
> to a proposed string for any reason, and that the GAC will consider 
> any objection and agree on advice to forward to the ICANN Board.  
> While the former is too expansive and should be bound by some 
> principles, the latter is consistent with the status quo.
>
> Maybe as a side note I should say that Avri and I had a long lunch 
> talk with the lead USG person and talked about this in some detail.  
> She insisted that the US doc was being misread out of context, in that 
> is was geared toward internal GAC discussions and what their position 
> should be, rather than some sort of new externally-oriented 
> pronouncement that changes GAC’s bylaws role from advise to command.  
> That is, “If it is the consensus position of the GAC not to oppose 
> objection raised by a GAC member or members, ICANN shall reject the 
> application,” meant that the GAC’s advise would be to reject, not that 
> the Board would be bound to reject.  At the same time, there was a bit 
> of a waffle here, since she also felt it’d be exceptionally 
> ill-advised to go forward over GAC objections, and Larry Stickling’s 
> much quoted Flatirons speech in February stated that the Board “would 
> have little choice but to reject the application.”  Not that it 
> legally couldn’t under the bylaws, but that it’d be stupid and 
> self-destructive to do so, and presumably political pressure would be 
> brought to bear to persuade it.
>
> The larger point she really emphasized was, as suspected, about 
> ICANN’s preservation in the face of calls in the UN for 
> intergovernmentalism.  As we know, Brazil, India, South Africa and 
> China have called for a new intergovernmental body with global 
> Internet public policy responsibilities, and there’s fear that this 
> and other proposals could morph into pressures for oversight or 
> control of ICANN.  The USG appears to be getting seriously worried 
> that if more governments lock into a view that they cannot get their 
> way with ICANN on matters they consider to be fundamental national 
> interests, and/or that ICANN’s is irredeemably accountable to the 
> broader international community, they’ll become more receptive to 
> considering intergovernmental alternatives.  One can debate whether 
> that concern justifies the kinds of language used in the US input doc, 
> and indeed we should at the NCUC event in San Francisco.  But I do 
> think they’re getting worried, as Stickling’s speech underscores.  See 
> also the Washington Post article the other day about how the Obama 
> Administration is becoming a critic of ICANN, as well as Stickling’s 
> testy December letter to Beckstrom….
>
> On other points discussed previously here: Re: registry/registrar 
> separation, PDT characterized the board as agreeing with GAC that when 
> there is market power, then there needs to be separation, but 
> maintained that the Board has developed a better model for assessing 
> and dealing with such circumstances.  And as for the trademark stuff, 
> there seemed to be Board movement toward the GAC concerns on many 
> specific issues, a lot of 1A’s and 1B’s as I recall, but a few key 2’ 
> as well.  Again, the ICANN doc (another “scorecard?”) should be out 
> soon with that listing, and in the meanwhile we have Konstantinos’ 
> excellent blog analysis.
>
> I really do have to work on my course lectures, so this will have to 
> suffice for now as a starting point, and hopefully others can fill in 
> the picture on the zillion issues not mentioned.
>
> Cheers,
>
> Bill
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