GAC-Board meeting in Brussels

[Robin Gross]

Good stuff, Bill, thanks!


On Mar 4, 2011, at 6:49 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




IP JUSTICE
Robin Gross, Executive Director
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