Originally Published 2014-09-09 00:00:00 Published on Sep 09, 2014
From an internet governance point of view, and the debate over the ITU staking its claim over managing the internet resources and taking over the ICANN functions, GAC's role is an important one, but which often finds itself as not having enough 'clout' in the ICANN decision making process.
ICANN and GAC ? A Review of proposed byelaw changes

Background ICANN is the Internet Corporation for Assigned Names and Numbers tasked with the responsibility for Internet Protocol (IP) address space allocation, protocol identifier assignment, generic (gTLD) and country code (ccTLD) top-level domain name system management, and root server system management functions. More generically, ICANN is responsible for managing the assignment of domain names and IP addresses.

As the Internet grew and expanded globally, and following the January 1998 invitation for comment on Proposal to Improve Technical Management of Internet Names and Addresses, by the NTIA under the U.S. Department of Commerce and based proposals and feedback thereon, ICANN was established to manage the Internet Assigned Numbers Authority (IANA) functions under contract to the US Department of Commerce.

Current ICANN Governance Structure

ICANN’s structure is a unique mix of being a public nonprofit company registered as a 501(c) (3) charity and also referred to as a multistakeholder organization managed by an international Board of Directors, consisting of sixteen voting members and five non-voting liaisons. Three supporting organizations namely the Address Supporting Organization (ASO), Generic Names Supporting Organization (GNSO) and Country Code Names Supporting Organisation (ccNSO), each select two of the voting Board Members, the "nominating committee" selects eight directors, the at-large community selects one director and ICANN’s CEO also votes on its board. Both business interests and civil society participate in ICANN policy development either through the at-large community, which advises the board on a wide variety of issues, or through the Generic Names Supporting Organization (GNSO), which makes policy recommendations specifically related to generic top-level domains.

Role of GAC

Article IX, Section 2 of ICANN byelaws provides for setting up of advisory committee and hence governments participate at ICANN in an "advisory" capacity via the Governmental Advisory Committee (GAC) and also via a non-voting liaison on the board of directors. GAC has representatives from 111 countries and about 30 other international/regional organizations act as GAC observers. The GAC considers and provides advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues.

The Byelaws Consultation and Proposed Resolution

It is this very relationship and the working mechanism between the GAC and ICANN that is now under a round of public comment period, where the last of the 3 sub sections (K) of the Article IX, Section 2 has been proposed to be amended as under (proposed amendment as sought to be added is underlined):

i. The Governmental Advisory Committee may put issues to the board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies.

j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

k. If no such solution can be found, the ICANN board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities. A final decision by the ICANN board to not follow the advice of the Governmental Advisory Committee must be supported by a by a two-thirds vote of all members of the board that are eligible to vote on the matter.

Currently, the ICANN byelaws require formal determination by the board that it is taking action inconsistent with GAC advice, if that were to ever occur. Pursuant to the byelaws, a simple majority of the board (50%+1) is required to make this determination.

It was the first ICANN Accountability and Transparency Review Team (ATRT1) that had recommended the formalization of that consultation process. Consequently a Board-GAC Recommendations Implementation Working Group (BGRI) developed a formalized process that included the raising of the voting threshold to 2/3 of the voting members and that the higher voting threshold would be applied in the event ICANN determined to act inconsistently with GAC.

ATRT2 recommended for the completion of the byelaws revision process. At its meeting in June 2014, the BGRI determined that it was timely to send these proposed revisions to the board for consideration, and on 30 July 2014 the board approved this public comment posting.

Assessing the reasons and need for the Amendment proposed

So, what could be reasons for the ATRT appointed by ICANN itself; to make it more difficult for the ICANN board to refuse to heed any particular GAC input or advice?ICANN has always been regarded as an organization which has only a nominal oversight from the US government, mostly unaccountable to anyone including to its own constituencies. It draws immense flak and criticism for the supposedly opaque manner of its decision making, away from any public scrutiny.

From an internet governance point of view, and the debate over the International Telecommunications Union (ITU) staking its claim over managing the internet resources and taking over the ICANN functions, GAC’s role is an important one, but which often finds itself as not having enough ’clout’ in the ICANN decision making process. In some cases ICANN has even been accused of misleading GAC such as in the contentious .africa string allocation issue.

I suspect that, the above perceptions, which have been long standing, could be the trigger to dilute the almost ’absolute powers’ of the ICANN board and make it more amenable to accept and implement any or all advice from the GAC. The attempt, in this proposed change of byelaw, could be an attempt to show that governments acting in concert through the GAC, finally have a more ’pertinent and forceful’ role and insulate itself from the supposedly unquestionable independent decisions of the ICANN board.

My personal sense is that coming as it is smack in the middle of an on-going IANA transition consideration and process, answers to which should be found by September 2015, just about a year away, where the whole decision making process, restructuring of the various constituent bodies and organizations, will be up for a transformation anyway, it might be a bit of an enthusiastic overkill to overhaul the GAC ICANN policy development and decision process midway through the transition process.

GAC ICANN advisory and consultation process is already so elaborately laid down and followed, that I personally think it does not leave much scope for GAC advices being summarily dismissed by the whimsies of an ’independent’ ICANN Board. Sample the process that is laid down in the Article IX, Section 2 i,j,k and the back and forth it entails, and it makes me doubt that there is much scope left for arbitrariness in decision making whether in terms of acceptance or disregarding the advice from GAC.

In addition, the ICANN byelaws in another place, Article IV to be precise, provide for an independent review of its actions and decisions, where anyone affected (person/entity) can seek for a reconsideration of the actions of ICANN. Hence, there is this additional layer of checks and balances available, and by implication makes all ICANN decisions capable of being questioned and scrutinized.

This is not to say that attempts to reform processes should be overlooked or stalled; rather they should remain on-going; the point is that the probable outcomes of any attempted reform should be clear, and it is not clear to me yet what element of enhancing accountability, transparency, credibility in ICANNs decision making capacity, this particular byelaw change will bring in. All that it seems to achieve is for the governments’ voice in ICANN to be made harder to ignore and disregard. To my mind, that’s not something that really will ameliorate any ’perceptions’ of ICANNs decisions process. Hence, I think, it’ll be prudent to wait for what emerges as the universally acceptable solution to IANA function globalization and transition process, before taking up this proposal for reconsideration and embarking upon and exercise of this byelaw amendment.

The author is the Director of Telxess Consulting Services (Pvt) Ltd and a board member of .ORG, the Public Interest Registry. He also works with the Digital Empowerment Foundation, the Open Knowledge Community, and was a Member of the Working Group on Internet Proliferation of DeiTY

Courtesy: ORF Cyber Monitor

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