GAC Internal Process for Briefings by New gTLD Applicants and Other Interested Stakeholders Raises Multiple Process and Timing Questions by Philip Corwin

Philip Corwin imageby 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:

  • The first involves transparency of process and evenhanded due process. ICANN has been maintaining an open and cumulative list of comments submitted in regard to new gTLD applications (see https://gacweb.icann.org/display/GACADV/GAC+Register+of+Advice) As noted, while the GAC notice refers to requests it has already received from applicants and other interested stakeholders it does not reveal the number of such requests nor their source, so whatever has occurred to date has been non-transparent. We can presume that lobbying-type contacts in national capitals with GAC member government officials having ICANN-related responsibilities, and seeking their support for a GAC briefing, will not generally be revealed – nor is it clear that any subsequent briefings that result will be publicly noticed, much less open to observation. There is also the unanswered due process question of whether a particular gTLD applicant, or other parties who might be affected by the requests made of the GAC in such a briefing, will have any advance opportunity to learn of it much less be afforded an opportunity for response. Evenhandedness should surely require that if GAC members have agreed to a briefing directed against a particular string or applicant, or in favor of altering a policy contained in the current AG, that those parties who may be adversely affected by the resulting GAC decision be notified of the briefing decision and afforded an opportunity to present their side of the story prior to any GAC decision-making. Past GAC practice highlights the need for such due process protection, as the GAC advice on altering RPMs was delivered with no advance notice and with no opportunity to hear a narrative different from that presented by brand owners and WIPO. Additionally, the GAC gets a grade of Fail on its transparency record – notwithstanding the provision of the preamble to its Core principles that “ICANN’s decision making should take into account public policy objectives including, among other things: …transparency and non-discriminatory practices in ICANN’s role in the allocation of Internet names and address”, every single meeting of the GAC at the recent Prague ICANN meeting (other than joint meetings with other ICANN constituencies) was closed off to the general public —  its internal operations are opaque and secretive.
  • The second involves the timing impact of substantial GAC involvement on string evaluation/delegation. In a June 17, 2012 letter to ICANN  the GAC advised that it would be following its own slower process – and did not plan to issue any “Early Warnings” on potentially objectionable new gTLDs until shortly after the October 2012 meeting in Toronto. Even more tellingly, it stated that it will not be in a position to offer any more advice on the new gTLD program during the remainder of 2012, and did not expect to finish internal considerations of the implications of providing GAC advice on applications until after the April 2013 Beijing meeting. (see https://gacweb.icann.org/download/attachments/1540128/GAC+Letter+to+Steve+Crocker_New+gTLD+Appliation+Processing_20120617.pdf?version=1&modificationDate=1341945307000)That letter does not provide any target date for when the GAC will actually be ready to offer advice on new gTLDs, and the more briefings it entertains the more distant that date may be. (Note: This June 17th notification seems to be at some odds with point number 6 in the preamble to GAC Core Principles, “The GAC commits itself to implement efficient procedures in support of ICANN and to provide thorough and timely advice and analysis on relevant matters of concern with regard to government and public interests.”) (emphasis added)
  • The third but perhaps most important consideration is the introduction of capital P politics into an evaluation process that strives to be neutral and objective in its treatment of applicants – particularly if one applicant for a particular string is lobbied against by another applicant for the same string in an attempt to secure GAC intervention to avoid the auction process that ultimately settles such matters when competing applicants do not combine efforts or drop out. GAC briefings will only occur when supported by one or more GAC members, and the access to and ability to convince them to request a briefing will depend to one degree or another upon domestic political connections. In turn, GAC intervention for or against a particular applicant may also be seen as politically motivated regardless of related material issues.
  • The final consideration is ethical, is again tied to the insertion of politics into the advice and objection process, and involves potential conflicts of interests among GAC members. In this regard, it is instructive to note that the GAC’s Prague communique calls upon ICANN’s Board “to proceed urgently with all the necessary steps to implement an effective and enforceable ethics and conflicts of interest policy, to strengthen ICANN governance framework both in the context of the new gTLD process and in all other areas of its activity”. (https://gacweb.icann.org/download/attachments/4817665/FINAL_GAC_Communique_20120628.pdf?version=1&modificationDate=1341180014000) If the GAC is so concerned (and rightly so) about the ethics of ICANN’s Board and senior staff, particularly as it relates to the new gTLD program, then what if anything it is prepared to do about the quite significant potential for actual or perceived conflicts among its members when one of them champions a briefing and subsequent GAC consensus action on behalf of a particular party which has special ties (including substantial financial support of, or family or business connections to) to the relevant government or IGO – or when  one GAC member agrees to back another’s briefing request in exchange for support of its own favored applicant or stakeholder?

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:

  • One applicant seeking special support for its bid for a contested string or to impugn the qualifications of another applicant for the same string.
  • A community applicant seeking to shore up the bona fides of its auction-avoiding community status against that of commercial applicants for the same string.
  • Input from one or more applicants seeking to raise antitrust/competition issues against other applicants based upon their current dominant position in search, e-commerce, or related Internet activities — or even just based upon the total number of applications they have submitted.
  • Input from an applicant who may be concerned that one or more interests is working with the GAC to oppose one or more of its applications, and who wants to be sure that its side of the story is heard before any GAC advice or objection is rendered (especially in the potential absence of a transparent GAC process that assure evenhanded briefings).
  • Input from trademark/brand interests seeking to block particular strings on alleged grounds that they will be compelled to make large numbers of otherwise unwarranted defensive registrations; or to reopen the AG’s RPMs, focusing in particular on reconfiguration of the URS to convert it from a narrow substitute for the UDRP into a low-cost substitute.
  • Input from other parties seeking GAC support for objections against or the advocacy of special conditions being placed upon particular strings, or the reopening and reconsideration of key policy and administrative components of the AG.

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.