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

Peter Dengate Thrush barrister at chambers.gen.nz
Wed Feb 26 12:11:54 UTC 2014

On 25/02/2014, at 3:28 AM, Milton L Mueller wrote:

> -----Original Message-----
> From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf Of Steve Crocker
>> There is work underway to bring the GAC earlier into the policy 
>> development process so their input is available during and not just after the PDP concludes.
> People have  been saying that since the release of the first Accountability and Transparency Review Team report, two years ago. 
> I myself have seen zero change since then. The absence of change is not for lack of trying: the problem is structural. Until and unless GAC dissolves and governmental participants involve themselves directly in the policy development process on equal terms with all other stakeholders, this problem will not be solved.

As I hope I have explained in a recent posting, it is impossible for governments to participate on "equal terms".
Part of the secret of ICANN's success to date has been balancing the strengths of different unequal forces into a coherent policy development process. That has included the development of the picket fence, and also the voting structure of the constituencies, representation on working groups, councils and the board.
Although it often doesn't feel like it - and there are failures - we have a balanced structure that takes inputs from enterprises as large and powerful in this space as Verisign, and also from the smallest, newest gTLD registry, from Google to a 2-man consulting firm, from China to the island of Niue.

Governments, as I mention elsewhere, are a special case - they are outside the policy development process - for the protection of that process, but get a stronger voice at the end. Advisory still, but compensatingly stronger.

Because all the players are unequal, I counseled Fadi from continuing with a new mantra he was trying out - the "multi-equal stakeholder model". 
Governments do not want their ICANN status dropped to be the equivalent of the ccTLD holder from a small island, nor an At Large entity.

> Put differently, as long as GAC meets in a room in isolation from all other stakeholder groups and runs a parallel, separate process, and has the bylaw-granted authority to intervene at the end, the current problems will remain. 
I think this is the lesser of several evils. Problems such as delay can be addressed by procedural rules; the scope of issues the GAC can advise on can be limited ( "public policy" could be more tightly defined), the ability of the board to re-make MS made policy in the face of GAC advice can be restricted, the issue can be  remitted to the GNSO for further work, etc etc.

Do keep in mind that attracting and keeping governmental support from ICANN and the MSM means that they have to have a meaningful role, or they will seek alternative venues, and also that the GAC is a potentially very useful source of expertise, skill and insight. I believe that a strong GAC is very good for ICANN.

> John Curran made an important point, however, that is being obscured in this discussion. It was not just that GAC is culpable for intervening in the final stage, but also that the ICANN board is culpable for turning itself into the final negotiator of policy rather than ratifier of what the bottom up process does. In other words, the board has a tendency to position itself as the "DNS policy board" rather than the board that just runs the organization that supports the policy process. The policy process should be driven by stakeholder groups.

I agree, and suggest the formation of a panel of Domain Name Commissioners to exercise those functions.


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