GAC-Board meeting in Brussels

[Milton L Mueller]

Bill,
This is a great report, and it's the kind of analysis we desperately need as a group to determine our positions and strategy going forward. Thanks for doing it.

Let me respond to a few of the points you made. You have provided a very balanced account but on a few occasions I think your striving for balance is giving false credence to rationalizations that governments (especially the US Govt) have made up to justify their actions.

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.
[Milton L Mueller]

I think the GAC response here is absurd. As someone who participated in the early stages of new gTLD policy formulation during and shortly after the March 2007 "Principles" I know that the GAC Principles massively impacted the policy formation process. The whole attempt to come up with MAPO, for example, had no support in the GNSO but was seen by major business constituencies and staff as a necessary to appease GAC. Arguments against MAPO made by NCUC members were ignored by staff because they thought they had their marching orders from GAC. Furthermore, the MAPO regulations were in place almost two years before Suzanne Sene suddenly objected to them at the June Brussels meeting. Same argument applies to the Commerce Departments sudden call for "research" to support the economic need for new gTLDs. In effect, the DoC was asking us to go back to square one. It is obvious that these pressures came from trademark lobbying and nothing else.

The "big" issue here is what constitutes a "public policy issue" and "public policy advice"? Over time, GAC has gravitated more and more toward an operational role, i.e., giving itself direct control over outcomes, rather than providing advice on general policies that should be adopted. The veto - or even the watered down version of giving "advice" on individual applications through a Communique - illustrates the difference. When you look at individual applications and ask to be able to object to them "for any reason" you are not providing "policy advice": you are asking to be the one who makes the final decisions about what TLDs can and cannot exist.

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.
[Milton L Mueller]

As I said, the view that there wasn't enough communication is a face-saving, comforting way to construct things. But in my opinion it's false. It would be more accurate to say: as long as the Board doesn't do exactly what the GAC tells it to do, and let the GAC command it any time it wants, we are doing to be hearing about some kind of "disconnect"

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.
[Milton L Mueller]

This difference between the two procedures does indeed exist. And it's important. But what boggles my mind is that no one on the government side seems to remember that this slow, bureaucratic 200-sided multilateral process is PRECISELY WHY WE PUT DNS IN THE HANDS OF ICANN TO BEGIN WITH! We wanted to get DNS out of a situation in which 200 different jurisdictions would try to impose their own law and spend ages trying to work out their differences.

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.
[Milton L Mueller]

Same comment as above

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.
[Milton L Mueller]

Again, this to my mind constitutes a clear abuse of process by the GAC. The GAC has no defined process to follow and can just keep all of us hanging. Let's not be naïve about the possibilities for strategic misuse of this latitude.

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.
[Milton L Mueller]

You've been played. As I've said in another context, the DoC is making beeping noises as it backs its way out of an uncomfortable position. There was nothing "misread" or misinterpreted about the USG's position; there was, however, something deeply embarrassing about it when exposed to the light, and when we made sufficient noise they were forced to back off. I know that Fiona is very good at such retroactive justifications, but I am not buying it. Consider the following facts:

-   That document was circulated US Commerce Dept itself to "selected" people, one of whom was so shocked by it they sent it to me. Obviosuly they are not interested in the US public's viewpoint, only certain people they think predisposed to agree with them.

-   When they were first challenged publicly on it and approached by reporters, they did NOT say anything about it being geared toward internal discussions - they defended the position therein. This is documented.

-   Even if it was only for internal discussion, it was clearly marked as the "USG position for the GAC scorecard."  In other words, it was the position that the USG was taking. If they modified it because of our political pressure, what would they have done if we had not generated that pressure?

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."
[Milton L Mueller]

This is they key! In other words, they really DO want the GAC to have a veto. And note that there is no "policy" here - no general set of rules or guidelines that tells us what is allowed and what is not, there is no reliance on international law, there is just "for any reason." So Fiona's whining about being misunderstood is B.S.

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.
[Milton L Mueller]

Oh, this takes the cake! The old "UN will take over the Internet" bogeyman. I know you are reporting on what Fiona said, and doing it well, but let's at least make some common-sensical emendations. Would someone please explain to me why we should want to prevent the UN or any other intergovernmental institution to "take over" ICANN by giving all-encompassing power over it to an...intergovernmental advisory council. At least the UN agencies have treaties and laws and the treaties have to be ratified by national legislatures and follow due process. If we have to choose between GAC and an IGO, I'll go with a duly constituted, treaty-based IGO.

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.
[Milton L Mueller]

The ONLY threat of an Intergovernmental takeover comes from the GAC, and from nowhere else. ITU has been repeatedly rebuffed, and the last Plenipot actually recognized ICANN for the first time; WSIS failed when ICANN was much weaker and more controversial and less attuned to international concerns.


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.
[Milton L Mueller]

Thanks again!

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20110305/68056fa2/attachment-0001.html>