Ex parte communications: for everyone, except us say governments

One of the more refreshing aspects of the NTIA's ongoing NOI regarding the expiration of the Joint Project Agreement with ICANN was the inclusion of an ex parte reporting requirement. It presumably added a
level of transparency to Internet governance matters and their relationship to the United States government which had not been seen before.

Unfortunately, it was too good to be true. From yesterday's Federal Register, comes a clarification regarding ex parte procedures associated with NTIA's NOI:

Meetings and other interactions with members of Congress, their staff, foreign governmental officials or with officials of intergovernmental organizations regarding matters within the scope of this proceeding (including the expiration of the JPA) shall not be considered ex parte communications, which trigger the reporting requirements…

Realistically, it shouldn't come as a surprise that NTIA is according conversations with other governments and intergovernmental organizations the same treatment as the conversations which take place inside the USG. Governments continue to claim their special “advisory role” despite the oft-made claim that IG is a multi-stakeholder, bottom-up process.

Concern about the exception is two-fold. First, governments could be, despite their public protests about the JPA and USG oversight, making deals in exchange for permitting ICANN to remain under the oversight
of the USG. Second, because Congressional interactions are not subject to disclosure, it could shift the focus of domestic lobbying there (instead of at NTIA), which gives a distinct advantage to constituents.

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