On September 3rd the ICA filed a comment letter with ICANN opposing a Bylaws amendment proposal to raise the threshold for Board rejection of Governmental Advisory Committee (GAC) “advice” from a simple majority to a two-thirds vote.
The GAC presently submits advice to ICANN based on “consensus”, which is general agreement without objection. But, in the wake of the U.S. announcement of the intended transition of oversight of the IANA functions, a number of GAC member nations have been pressing to change the GAC’s role from advisory to directive, and to permit the issuance of advice by simple majority vote — and the GAC’s Operating Procedures could be readily altered to accomplish that. ICA believes that adoption of the Bylaws change would incent those nations to press harder toward that goal. It would also undermine ongoing efforts to improve GAC participation in the GNSO’s multistakeholder policy process.
The U.S. announcement of the IANA transition emphasized that “NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution”. But the Bylaws change could set exactly such a result in motion via internal GAC takeover of key technical and policy decisions. That would essentially end the private sector-led multistakeholder model that has guided ICANN since its inception.
The letter has been filed at http://forum.icann.org/lists/comments-bylaws-amend-gac-advice-15aug14/msg00012.html . So far, every comment letter filed on this proposal has strongly opposed it, but ICANN watchers know that does not mean the Board won’t proceed with implementation of this dangerous idea.
The text of the letter follows:
VIRTUALAW LLC
Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
September 3, 2014
By E-Mail
Internet Corporation for Assigned Names and Numbers
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Proposed Bylaws Changes Regarding Consideration of GAC Advice
Dear ICANN:
I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
This letter addresses theProposed Bylaws Changes Regarding Consideration of GAC Advice published for public comment on August 15, 2014.
The ICA believes that this is a very inappropriate time to consider changing the Bylaws in regard to rejection of GAC advice, and that this matter should be deferred until at least the time that the IANA transition and adoption of the accompanying accountability structure are completed. We further believe that adoption of this proposal would undermine ongoing efforts to better integrate the GAC within the GNSO policy process, and would also encourage GAC members who favor multilateral over multistakeholder processes to press for undesirable changes in the GAC’s Operating Procedures in regard to the manner by which the GAC renders advice.
We therefore oppose the proposed change and urge its withdrawal.
Executive Summary
- The proposed Bylaws change has the potential to allow the group of governments comprising the GAC to lead ICANN and to transform ICANN into an organization indistinguishable from an IGO/INGO. This result would be directly contrary to a key condition set by the NTIA for the IANA transition.
- The proposed Bylaws change would potentially elevate GAC advice above PDP policy recommendations generated by the stakeholders within the GNSO, thereby eroding the multistakeholder model that has guided ICANN since inception. The GAC already enjoys preferred status compared to all other Advisory Committees.
- Adoption of the proposed Bylaws change would undermine ongoing efforts to integrate the GAC into the GNSO’s processes while encouraging GAC members who advocate multilateral governance to press harder for undesirable changes to the GAC’s Operating Procedures.
- The language of the proposed Bylaws amendment is poorly drafted and would create dangerous uncertainties.
- The proposed Bylaws amendment must also be viewed in light of the recent BWG-NomCom Report that recommends diminishing the influence of stakeholders in the selection of Board members while elevating the influence of governments.
- As ICANN’s relationship with governments is a central issue in the ongoing consideration of the IANA transition and accompanying accountability enhancements, consideration of this proposal should be deferred until at least the time when those matters have been concluded.
Discussion
ICANN’s principal rationale for adopting the proposed Bylaws change appears to be that it would merely formalize a voting threshold for the Board’s rejection of GAC advice that has already been informally adopted by the Board. However, that rationale fails to consider that, once adopted, such a Bylaws change will be far more difficult to reverse than an informal and wholly voluntary operating procedure.
As discussed below, it may also incite members of the GAC who favor a multilateral approach over the multistakeholder model to propose and push for changes in the GAC’s own Operating Procedures. It will also undermine the multistakeholder model by elevating the Bylaws standard for rejecting majority vote GAC advice over that required for its rejection of a majority vote GNSO PDP recommendations; that would potentially give the GAC a greater influence over ICANN policy than the stakeholders comprising the GNSO which is supposed to determine gTLD policy.
The ongoing and interrelated matters of the IANA transition accompanied by enhanced ICANN accountability measures inherently involve ICANN’s relationship with governments. No decision should be made on any Bylaws change affecting the role and influence of governments within ICANN until those matters have been fully resolved.
Deferring any decision on this matter is particularly important given that the March 14, 2014 announcement by the National Telecommunications and Information Administration (NTIA) regarding its intent to transition the key IANA domain name functions stated:
Consistent with the clear policy expressed in bipartisan resolutions of the U.S. Senate and House of Representatives (S.Con.Res.50 and H.Con.Res.127), which affirmed the United States support for the multistakeholder model of Internet governance, NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution. (Emphasis added)
The NTIA’s commitment to the multistakeholder model has been reemphasized several times since that announcement. In his July 16th remarks to the IGF-USA meeting, Assistant Secretary of Commerce Lawrence Strickling stated that any IANA transition proposal, “must maintain the openness of the Internet. To emphasize the multistakeholder nature of this approach, we have made it very clear that we will not accept a proposal presented to us that would turn oversight to a government or group of governments as an appropriate transition plan.” (Emphasis added)
Further, in his July 22nd Keynote Address at the American Enterprise Institute, Secretary Strickling elaborated on the relationship of the multistakeholder model to human rights and Internet freedom:
Now that ICANN has demonstrated its ability to perform these functions with the support of the community, there is no longer a need for the United States to designate ICANN to perform these functions and we are not obligated to maintain a contract when it is no longer needed…We firmly believe that our announcement will help prevent any government or group of governments to take over the domain name system…Our announcement takes that argument off the table, and affirms the role of the global Internet community, which is committed to a truly inclusive multistakeholder process for Internet governance.
Leading human rights groups agree. In a letter to Congress earlier this year, the Center for Democracy and Technology, Freedom House, Human Rights Watch and others said that the transition “could help thwart government overreach in Internet governance, which would have devastating implications for human rights worldwide…
In that context, the idea that governments could enhance their influence within ICANN by changing its rules to allow for a majority vote on policy issues reflects a misunderstanding of the policymaking process at ICANN as well as a misunderstanding of the meaning of the word consensus.
The United States would strongly oppose any such move and indeed, any effort by governments to eliminate the requirement of consensus will simply weaken the role of governments within ICANN. Ultimately, ICANN’s multistakeholder process makes it impossible for any one group to dominate the discussions or impose its will. That is the beauty of the multistakeholder process and why it has enabled the Internet to grow and flourish.
Unfortunately, the NTIA’s announcement of the proposed IANA functions has not taken the subject of multilateral Internet governance off the table for many nations, and the proposed Bylaws change could permit the GAC to dominate ICANN discussions and impose its will. For example, on August 19th the government of Iran proposed a revision to International Telecommunications Union(ITU) Resolution 102 that would alter the GAC’s role from advisory to decision-making.[1]That proposal will be debated at the ITU’s Plenipotentiary meeting scheduled to take place in Busan, South Korea from October 20-November 7, 2014. Adopting the proposed Bylaws amendment would provide a large incentive to Iran and similarly minded nations to press forward, both within the ITU and the GAC, to alter the GAC’s role and the procedures by which it renders advice to the ICANN Board.
The proposal to formally make it more difficult for ICANN’s Board to reject government advice is at direct odds with the NTIA’s opposition to governmental dominance of ICANN in the context of potential permanent transfer of the IANA functions to its control. The GAC is a “group of governments” and the proposed Bylaws change would make it easier for the GAC to dominate ICANN discussions and impose its will upon ICANN. While we take Secretary Strickling at his word that the U.S. would strongly oppose any effort to alter the GAC’s Operating procedures, we cannot be certain that such opposition would be effective, especially once the IANA transition is completed.
Indeed, we believe that adoption of this Bylaws change will only incent the supporters of multilateralism within the GAC to press to change its Operating Principles (OP) from consensus to majority vote, perhaps biding their time until after the IANA transition is completed. The rendering of GAC advice is currently governed by Article XII of the OP, which states:
ARTICLE XII – PROVISION OF ADVICE TO THE ICANN BOARD
Principle 46
Advice from the GAC to the ICANN Board shall be communicated through the Chair.
Principle 47
The GAC works on the basis of seeking consensus among its membership. Consistent with United Nations practice[1], consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection. Where consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board. (Emphasis added)
However, that current standard for rendering advice could be readily changed at any time by “a simple majority” vote pursuant to Article XIV of the OP:
ARTICLE XIV – REVISION
Principle 52
The GAC may decide at any time to revise these Operating Principles or any part of them.
Principle 53
A Member or Members may move, at a meeting, for these Operating Principles to be open to revision. If so moved, the Chair shall call for the movement to be seconded. If so seconded, then the Chair shall call for a vote to support the resolution. The deciding vote may be by ballot, by the raising or cards, or by roll call, and shall constitute a simple majority of the Members who are present at the meeting at which it was moved for these Operating Principles to be revised. If so resolved in favour of a revision of these Operating Principles, then the proposal shall sit for consultation for a period of sixty (60) days. At the next meeting following the sixty days, the Chair shall call for a vote for or against the proposal. The deciding vote may be taken by ballot, by the raising or cards, or by roll call, and shall be a simple majority of the Members who are present at the meeting at which the vote takes place. (Emphasis added)
In addition, the language of the proposed Bylaws change is poorly drafted. It reads: “A decision by the ICANN Board to not follow the advice of the Governmental Advisory Committee must be supported by a two-thirds vote of all members of the Board that are eligible to vote on the matter.”
This language leaves unanswered the question of what the status of GAC advice would be if it was considered by the Board and a majority but not two-thirds of the Board voted to reject it. Would that failure to muster a two-thirds vote leave the advice in some permanent state of limbo, or would the Board’s failure to reject it by a two-thirds vote create a situation where ICANN is bound to implement the GAC advice?
The proposed Bylaws change would also undermine the very multistakeholder process that the US has stated it is acting to preserve in proposing the IANA transition. In this regard we agree with the thrust of the arguments contained in the comment filed by Professor Milton Mueller on this proposal, in which he states:
This bylaw change gives GAC precisely the wrong kinds of incentives. The ATRT recommendations (and virtually everyone else familiar with ICANN’s process and aware of the dysfunctional relationship between GAC’s shadow-policy making process and the real bottom up process) have been urging GAC to get more involved with and integrated into the policy development process. But this resolution pushes them in the opposite direction. It tells GAC that they don’t have to consult or integrate their policy ideas with any other stakeholder groups. Their pronouncements will be given a special status regardless of how little make an effort to listen to and reach agreement with other groups. As this happens, other stakeholders will learn that the real place to influence policy is to lobby the GAC. The GNSO’s policy development process in particular will atrophy.
By proposing this ill-advised change, ICANN is corroding multistakeholder governance at its very foundations. If this passes, ICANN can stop presenting itself as an alternative to Internet governance via governmental and inter-governmental processes. It will have privileged governments to such a degree that virtually any arbitrary, untimely, ill-considered pronouncement that makes its way through the GAC will take on the status of a global rule for the Internet’s DNS unless 2/3 of ICANN’s generally spineless board can be mobilized to stop it.
What we are seeing here is, as some of us predicted, the long-term transformation of GAC into an intergovernmental organization with control over the internet. The problem is that the GAC is worse than ITU because it has none of the procedural safeguards and limitations on its authority (such as the right of a state not to ratify a treaty) that governments have.
The GNSO is the heart of ICANN’s multistakeholder community. And the GNSO has been working to better integrate the GAC into its policy-making process. ICA fully supports those ongoing GNSO efforts. But adoption of this Bylaws change will not only dis-incentivize the GAC from engaging with the GNSO but will actually encourage it to pursue its own separate and parallel policy development mechanism. When that occurs the GNSO volunteers who devote endless months to developing consensus policy positions will likely drop away from engagement if the GAC can simply intervene and impose its own contrary and politically driven views knowing that the Board needs to muster a two-thirds vote to reject them.
Indeed, adoption of this proposed Bylaws change would elevate the GAC above the GNSO in the ICANN policymaking process. Section 9 of Annex A (GNSO Policy Development Process) of the ICANN Bylaws states:
Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN. If the GNSO Council recommendation was approved by less than a GNSO Supermajority Vote, a majority vote of the Board will be sufficient to determine that such policy is not in the best interests of the ICANN community or ICANN.
As can be seen, the Bylaws require that Board rejection of GNSO PDP recommendations be by a two-thirds vote if the GNSO acted by a supermajority, but that Board rejection of a non-supermajority can be accomplished by simple majority vote. Yet the language of the proposed Bylaws change would require that a two-thirds vote be required for rejection of GAC advice, even if the GAC changes its OP to permit the issuance of advice by a simple majority vote. This would lead to the perverse result that, when the GNSO and the GAC took conflicting positions on a policy matter by simple majority votes, the Board would face a higher threshold in rejecting the GAC position than that of the GNSO. This would elevate the GAC above the community stakeholders within the GNSO and thereby erode the very foundation of the multistakeholder model despite the fact that the GNSO is designated as the key policy body for gTLDs while the GAC is supposed to hold a merely advisory role.
This result would transform ICANN into a government-led organization resembling an IGO/INGO, something that is completely counter to the key NTIA condition for the IANA transition.
Further, the remaining portion of Section 9 of Annex A sets forth a detailed procedure for resolving matters when the Board determines that adoption of a GNSO-produced PDP “is not in the best interests of the ICANN community or ICANN (the Corporation)”. But the proposed Bylaws change neither establishes a standard for the Board’s rejection of GAC advice nor a procedure for further resolving disagreements with the GAC. This reinforces the conclusion that the proposed Bylaws language is deficiently drafted and will likely lead to dangerously ambiguous situations wherein ICANN will find itself subject to multilateral political pressure and bound to follow GAC advice.
The Bylaws amendment is more disturbing when viewed in conjunction with the Board Working Group Report on Nominating Committee (BWG-NomCom) published for public comment on August 21st. That Report, prepared by the Board Working Group on Nominating Committee (BWG-NomCom), proposes to shrinks the total number of GNSO votes from 7 to 3, increase ccNSO votes from 1 to 3, and increase GAC membership from 1 to 3 while according that larger GAC delegation a vote — while at present the lone GAC member of the NomCom has non-voting status. Since the ccNSO consists of country code registries controlled by governments, the apparent end result of the proposed change would be to shrink the number of stakeholders representing the GNSO as well as total GNSO influence while expanding the influence of governments in selecting members of the ICANN Board. If the ccNSO and GAC are both viewed as representing governments, then then combined number of government-influenced votes would be four, one more than the three votes that would be accorded to the GNSO. Coupled with the proposed Bylaws amendment, we view this as a disturbing pattern of the Board advocating the diminution of private sector leadership and the expansion of governmental power within and over ICANN. The increased ability of governments to nominate members to the ICANN Board would further diminish the likelihood of Board rejection of GAC advice.
Finally, we note that Article XI of the Bylaws already accords the GAC with powers beyond that of any other advisory committee (AC). Section 1j requires the Board to take GAC advice into account in the formulation and adoption of policies, and sets procedures to be followed when the Board elects, by majority vote, to take action that is not consistent with GAC advice. No such deference is provided to the advice of the Security and Stability Advisory Committee (SSAC), even though the technical operation of the Domain Name System (DNS) is ICANN’s primary mission. The same applies to the Root Server System Advisory Committee (RSSAC), which provides advice on matters relating to the operation, administration, security, and integrity of the Internet’s vital Root Server System. And no special deference is given to the advice of the At-Large Advisory Committee (ALAC) even though it represents global individual Internet users. We understand that nation-states play a special role and that there are political considerations underlying the special deference already accorded to GAC views in the Bylaws. But, given that the GAC already enjoys a position elevated above all other ACs there is no reason to further enhance that difference, especially given the potential negative repercussions of the proposed Bylaws change.
Conclusion
The adoption of the poorly drafted proposed Bylaws change in combination with a subsequent GAC vote to alter its OP to permit the issuance of advice in the absence of “consensus” would result in governments having vastly more say over ICANN policy — without ICANN formally becoming an IGO/INGO or governments having seats on the Board. That would certainly be at odds with the spirit if not the precise letter of the relevant NTIA condition for the IANA transition. It would also potentially elevate the GAC’s influence above that of the GNSO and undermine ongoing efforts to integrate the GAC into the GNSO’s policy process.
For all the reasons stated above ICA strongly opposes adoption of this Bylaws change. We urge its withdrawal and deferral of any further consideration until the IANA transition and the adoption of enhanced ICANN accountability measures are completed.
We hope these comments are helpful to ICANN’s further consideration of this critically important matter.
Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association
[1] “Iran Urges ITU Plenipotentiary Members To Grant Decision-Making Power to GAC”; Bloomberg BNA Electronic Commerce & Law Report; August 27, 2014