[discuss] governments and rule of law (was: Possible approaches to solving...)

Peter Dengate Thrush barrister at chambers.gen.nz
Wed Feb 26 11:47:30 UTC 2014

John, Steve, Edmon and Milton
You touch on very important points for ICANN.
Comments in line below.

On 25/02/2014, at 12:53 AM, John Curran wrote:

> On Feb 24, 2014, at 2:57 AM, Peter Dengate Thrush <barrister at chambers.gen.nz> wrote:

>  If we presuppose that the role of the GAC is primarily to provide advice regarding 
>  aspects of ICANN policies which may intersect public policy matters (rather than 
>  serving in an oversight/accountability role), then indeed it could be helpful at 
>  times to have consideration during the policy development process of those aspects 
>  of policy which may pose issues for governments and/or may intersect various 
>  governments' laws, policies, and practices.
>  The difficulty, of course, with such an approach is that the consideration and input 
>  needs to be made available _during the policy development process_ rather than at the
>  final conclusion of the process during ICANN Board consideration (when all of the other 
>  stakeholders are no longer in the room to consider or respond to such GAC advice.)

The role of governments (individually or en bloc as the GAC) in policy making in ICANN is a very sensitive issue.
A very delicate set of balances are in play. Strong forces are involved.

A starting point in the multi-dependant system is the realpolitik assessment that governments are very powerful - much more powerful than any individual constituency or grouping within ICANN, and more powerful ( in their own territory) than ICANN. Collectively, they are even stronger. So, binding them takes a degree of consent on their part - but also relevant is the fact that the Internet presented a set of issues outside the actual reach of national law making. ICANN represents a historical seizing of that opportunity to develop a new relationship with governments.

Steve Crocker has responded that there are steps under way in ICANN to include the GAC in policy making in ICANN at earlier stages than previously.

While initially appealing - to head off the delay caused by GAC advice entering the process only at the final, board, level, it has to be approached with a good deal of caution. Its precisely because governments and the GAC are so powerful that binding them in the GAC has worked.
There are multiple aspects to this - one is cultural. At the risk of using too broad a brush, and speaking very generally, this means in some parts of the world that there is no contest of ideas with the government, no negotiation, and only a single voice.

In much of the world, the appearance of a government official in a meeting has completely and profoundly different meaning than in other places. Its a signal that the other players now need to be quiet, and listen to find out what is actually going to happen. There is no history or practice or acceptable face to disagreeing with what is laid out by the government. In some countries to show anything less that wholesale agreement is a path to arrest, or worse.

So, including governments at an earlier stage in GNSO deliberations would, at least in earlier times in ICANN, have resulted simply in government policy making.
There would be no multis-stakeholder debate and policy development would have resembled any other government to government negotiation.

Acknowledging that others come from cultures with a tradition of robust debate with governments, the power of governments directly involved in policy making is still such as to overwhelm multistakeholder debate.
So, it has made very good political sense to allow the opportunity for voices to be raised in the absence of governments, and for a consensus to build among those players. Only when it has been completed is it exposed to government intervention.

Admittedly, keeping governments in a role where they advise the board just as the work has all been done by the community, and when the board is not supposed to substitute its view, but simply to assure that proper procedures have been followed, and no unforeseen harm is likely, is a weakness. It allows, as Milton mentions in a paragraph I refer to below, for the board to re-litigate with the GAC on issues already settled by the community using community consensus-seeking processes.

The issue as with all politics, and political structures is not perfection but the best compromise.
The strength of the current system is that it keeps the heat of the GAC fire away from the process, until it is in the hands of the strongest body under the bylaws in ICANN - the board. Not only that, but what can be delivered is only advisory, and the board is armed with the bylaw that expressly allows it to reject the advice.

Any steps that allows governments into the policy making chamber unrestrained has to take into account this enormous disparity of power.

People on this list will be well aware of the power politics that governments in other fora are used to playing. Reference to the history of the Whaling Commission, for example, is replete with allegations of countries buying votes in the Commission with trade aid and other blandishments that governments have at their disposal. Entities such as the NCUC would be completely and hopelessly out-gunned. The reality is that no constituency could withstand it.

Milton said:
That bylaw, which gives GAC advice a special status, allows the GAC (which usually is driven by a very small coalition of 5-eyes governments) to play a game called a "hold up" with the ICANN board. Their advice can disregard the results of the bottom up process and grind the policy development process to a halt while lobbyists or governments essentially renegotiate policy with the board. Interest groups who don't get what they want from the GNSO can then concentrate their efforts on the GAC - which means that they never play for real in the bottom up process to begin with. The GAC process makes a  mockery of the bottom up process and disenfranchises everyone who poured their blood sweat and tears into it. Until and unless the GAC is truly advisory and does not have hold up power or the ability to override bottom up consensus, I can't accept it.  

I see that bylaw as protecting Milton and other members of the ICANN community from Governments because it is the quid pro quo Governments get for not participating directly in the policy making process. For it to be of value for them to participate at all - given their exclusion from the policy debate, they need a role that has the promise, at least, of being able to exercise influence over the outcome.

In other words, I fear that letting them play fully in the policy development process would result in no multistakeholder policy reaching the board at all - "what governments want" would be delivered to the board to ratify. At least this way, albeit flawed in the way identified, multistakeholderism gets a chance to operate, and government advice is able to be considered.

Thats the strategic argument.

In operational terms, if its possible to alert the GAC early to policy developments, and keep them posted about what is going on, and for the GAC to develop its own positions earlier, and share them with the MS policy development process, thats all much to the good. That should shorten lead times and reduce surprises and ambush.
Further, ICANN is much stronger institutionally and procedurally than it was in 1999. It is likely to be better able to consider the GAC engaging in a wider context 
All I would counsel is that the vast disparity of bargaining power be kept constantly in mind, and that not all members of the community can now be assumed to hold dear the same "Internet values" that have so well served the Internet and its institutions so far.

I disagree with Milton that the solution is to disarm the GAC. I say again that the better approach is to strengthen the board, and related process, and to be able to hold the board accountable.
Delay as a tactic can be dealt with by requiring that GAC advice should be given and processed according to a strict timetable, with the default favouring the advice being rejected. (The opposite of the current position over .Amazon and .spa).

A board that abandons an MS-made policy without compelling reasons should be subject to recall. Knowing that the board was to be held accountable like that would help it in its negotiations with the GAC.

> The current structure of GAC providing advice to the Board only makes sense if the 
>  ICANN Board's role is actually "The DNS Policy Board" rather than actually ICANN's
>  Organizational Board (which must have a much greater scope including administration 
>  of the policy, the operation of crucial shared systems and services, and providing 
>  for accountability of the entire ICANN organization to the Internet community.)

>  Given the ICANN Board's role you've stated above, the positioning of the GAC makes
>  sense, although that leaves us with a Board which is ultimately responsible for final 
>  decisions in DNS policy development, administration of the resulting policy, and 
>  oversight of the policy development process...  convenient one-stop shopping, but not 
>  exactly a model worth emulating when it comes to providing structural accountability)

This is the same question Edmon raises - is the board appropriate for this task - is the governance structure the best we can come up with?

I think its clear that what is needed is recognition of a new role, that of Domain Commissioner, and that a panel of Domain Name Commissioners should be appointed to carry out the determinations on a range of issues currently carried out at present by both the board and the GNSO council. That would reflect the fact that the board has, in addition to the fiduciary and administrative work that boards normally do a range of work to do on matters outside GNSO matters. The board should also be focus on the performance of ICANN as a whole, and attending to such as running and implementing the results of AoC and Bylaw reviews.  It should be the champions of the MS model, starting by ensuring the SO and their constituencies are in good shape and well resourced. 

The GNSO Council should assume much more responsibility for its own budget, its own processes, staff management and continue its role in managing policy development processes. This would mirror and complement the recent creation of the GTLD division at a staffing and admin. level. Its going to be made much more necessary by the arrival of another thousand registries, etc with the new gTLD programme. Final determination, and decisions currently sent to the board from the GNSO should go to the Domain Name Commissioners, who would be well paid, independent, of reasonable tenure, experienced, from many legal jurisdictions and with diverse cultural backgrounds. Guided by a set of "ICANN principles" (stressing, for eg. bottom-up decision making, by transparent geo-diverse processes involving the affected parties)  they would make binding decisions, giving reasons, explaining all the inputs, and the rationales - much akin to the process the board has developed in recent years.. 

"GAC advice" that currently goes to the board should go to the Domain Name Commissioners, and ( with apologies to Milton) a continuation of the current special advisory role - for the reasons given.

I think that with organisational maturity and strength comes the opportunity to change the role of the board back to more of a governance role ( "noses in, fingers out") and at the same time to develop this middle layer of Commissioners that would take over a chunk of this large ( and increasing role) of being the gTLD domain name regulator.

I think that deals with the questions raised below, John.

May I adopt with great approval ( and no royalties!) your excellent signature tag line:
> I have been involved with ICANN from pre-formation 
>              to the present times, am an avid supporter of the organization, and 
>              provide the remarks above entirely for the purposes of discussion 
>              towards strengthening ICANN's ability to perform its mission.



>> The real focus should therefore be on the way the board exercises that power, and, as part of that focus, on the controls by the multistakeholder community on the Board.
>> That is where the "accountability" focus should continue be directed.
>  See above.
>> Its a great thing to have the governments of the world working in an ICANN committee. Its a bad thing if their requests are not, in a measured and careful way, subjected to the appropriate analysis and balancing with other elements of the multi-stakeholder input. 
>  How exactly is such "balancing" to occur if the GAC input is provided to the ICANN 
>  Board at the end of the process?  
>> Its a bad thing too, if governments feel that genuinely appropriate measures it seeks in the public interest are defeated by special interest in ICANN, forcing them to abandon the GAC and seek better results via re-arranged Internet governance mechanisms.
>> Its a terrible thing if GAC requests are not met by a board that is resolute to maintain the whole of ICANN's integrity.
>> Its a tragedy if the community has insufficient accountability mechanisms to hold, and to keep the board to a proper accounting of its role in this balancing exercise.
>  Do you mean accounting of the Board in its policy development role with respect
>  to the consideration of the GAC advice in a balanced manner?  How exactly would
>  the community have an accountability mechanism for the ICANN Board in its specific
>  role of balancing GAC input in policy development process, when such accountability
>  would be ultimately need to be anchored in the same Board which is also providing
>  the oversight to the entire policy development process?
> Thanks!
> /John
> Disclaimers:  My views alone.  I have been involved with ICANN from pre-formation 
>              to the present times, am an avid supporter of the organization, and 
>              provide the remarks above entirely for the purposes of discussion 
>              towards strengthening ICANN's ability to perform its mission.

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