by Philip Corwin from the Internet Commerce Association
ICANN has its own internal politics, as we’d expect for any organization having important duties and serving, and subject to input from, multiple constituencies. Those internal politics and “Capital P” politics intersect at its Governmental Advisory Committee (GAC). The GAC’s advisory role assumed more prominence under the Affirmation of Commitments (AOC) entered into upon U.S. relinquishment of direct ICANN oversight, and the GAC took that bit in its teeth as the new gTLD program was developed and it became the unofficial complaint department for many concerned by the prospect of imminent legions of new gTLDs.
In a new posting at its website the GAC revealed that it has already received “a number of requests from applicants or other interested stakeholders to brief or provide briefing material to the GAC” and that, “An internal process for handling requests and tracking materials is being put in place.” (https://gacweb.icann.org/display/gacweb/GAC+New+gTLD+Processes) It is not clear how these requests were communicated to the GAC, which consists only of its members and a Secretariat. Nor does it reveal which gTLD applicants were seeking a GAC briefing and whether the purpose was to bolster their own applications or to denigrate those of competitors; or what assistance or actions the “other interested stakeholders” were seeking. However, this notice does indicate that the GAC intends to play a fairly active role in vetting and taking positions relating to new gTLD applications, and is so open to receiving input from both applicants and other parties that it is establishing a dedicated process for handling that. In turn, this Capital P political involvement may well contribute to further delays and subjective alterations of the application evaluation and string delegation process – a process that, regardless of what one thinks of specific evaluation and objection criteria, has been designed by ICANN to be evenhanded and predictable.
Those seeking to sway the GAC in regard to both individual applications and overarching policy will need some political connections to make their case, as the notice also states that, “Briefings for the GAC will only be scheduled on a best-efforts basis and entirely at the request of GAC members.” (emphasis added) In other words, the GAC as a whole will only consider briefings that have been requested by one or more of its individual nation-state or international governmental organization (IGO) members. It is also not clear whether these briefings would be face-to-face during (almost always closed door) GAC sessions at ICANN meetings, or would be facilitated by telephonic or video conferencing between ICANN meetings for interested GAC members.
As the GAC’s own website reveals, while membership is open to all national governments it is nonetheless and self-selectively composed of a substantial minority of the world’s nations. The United Nations’ membership presently consists of 193 nations, but the GAC is presently composed of “approximately 50 national governments, distinct economies, and global organisations such as the ITU, UNESCO, the World Intellectual Property Organisation (WIPO), INTERPOL and regional organisations such as the OECD, Asia Pacific Forum, and Council of Europe”; that is, only about one-quarter of all nations participate in the GAC. (see https://gacweb.icann.org/display/gacweb/About+The+GAC) This raises the possibility that an applicant based in a nation that does not so participate will have no opportunity to seek briefing support from a sympathetic home nation GAC member. There is also the possibility that a GAC decision will be made by a minority of its minority of nations membership, as its Core Principles establish that a quorum for a meeting at which decisions are made need only consist of one-third of its members with voting rights (see ‘Principle 40’ at https://gacweb.icann.org/display/gacweb/Core+Principles). This means that GAC consensus may actually just represent consensus among 14 or 15 voting members.
The GAC has been quite active in providing advice to ICANN staff and Board during development of the new gTLD Applicant Guidebook (AG) (see https://gacweb.icann.org/display/GACADV/GAC+Register+of+Advice). Unfortunately, some of that advice has consisted in parroting the never-ending demands of trademark interests to substantially alter adopted consensus recommendations on new gTLD rights protection measures (RPMs) achieved through ICANN’s multi-stakeholder process. This has resulted in several Board alterations to Uniform Rapid Suspension (URS), including a one-week reduction in registrant response time and a halving of the number of disputed domains required to trigger a “loser pays” requirement. This advice on IP policy for new gTLDs, which generally sought to override the consensus policy recommended by the STI-RT and unanimously adopted by both the GNSO and the ICANN Board, was apparently influenced primarily through closed door meetings held between corporate trademark interests and their national GAC representative and other affiliated government officials. Additionally, WIPO is a permanent member of the GAC and has been unremittingly hostile to the current new gTLD RPMs, to the point where it recently advised ICANN that it would not even host a Geneva “Summit” on URS reconfiguration unless the Board agreed to its desired policy outcome in advance (see internetcommerce.org/WIPO2ICANN_URS_Summits). Advocates for balanced IP policies that promote fair use and respect registrant rights have no dedicated spokesperson within the GAC.
In addition to providing advice on individual applications and the overall new gTLD process, the GAC also has the authority to register a consensus objection to a particular string – and ICANN’s Board has indicated that as a general rule it will not allow such strings to be delegated over GAC objections.
Overall, GAC advice and objections must be regarded as the one point in the new gTLD evaluation and objection process in which objective rules and standards can be overridden as political pressure is brought to bear.
The GAC’s willingness to invite briefing input from parties able to secure the support of at least one GAC member raises some challenging related questions:
While we cannot at this time project the total number or types of requests for GAC briefings that may ensue under this invitation to provide input, we can envision at least the following potential categories of GAC briefing requests:
We wish to be clear that we are not saying that new gTLD applicants or other parties should be barred from communicating with the GAC and its individual members, or that GAC involvement in the new gTLD application process is illegitimate or unwarranted. The GAC has a valid claim to fulfilling its advisory role to whatever extent it deems suitable and appropriate. ICANN’s Board has already noted that it will be sensitive to GAC concerns, and political realities reinforce such a posture. But the GAC’s role should be handled in a transparent manner, with associated safeguards, which inspire confidence rather than raise fairness and objectivity questions.
What we are saying is that by announcing its establishment of a dedicated internal process for consideration of multiple briefing requests and the tracking of related materials, the GAC is setting itself up to a degree as a separate and parallel evaluation forum — and that forum may well be perceived as a venue in which various objective AG criteria can be circumvented, and that such perception may in turn lead to a very considerable number of attempts to secure GAC briefings.
We don’t know whether the GAC will ultimately agree to briefings and subsequent consensus advice or objection in a handful of instances or in scores of cases. But we do think that the possibility of such extensive GAC involvement raises concerns relating to transparency and due process, effect on program timing, plus related ethics and conflicts issues related to politically driven action — and that at this time we have no idea whether or how such concerns may be addressed. Therefore, we hope that the GAC will address these important concerns prior to scheduling any briefings, much less dispensing any advice or objections based upon them.
This article by Philip Corwin from the Internet Commerce Association was sourced with permission from internetcommerce.org/GAC-gTLD_Briefings.