In response to a motion from Noncommercial Users, ICANN has released a staff issues report about the topic of registry-registrar separation. The NCUC motion asked the staff whether contracts that liberalized cross-ownership restrictions among registries and registrars of new top level domains constituted a policy change that required a new policy development process, or were merely minor implementation issues that could be developed by staff within existing policy parameters.
Forget about the substantive issue for a moment. The staff report contains one whale of a process issue. Here is the paragraph that caught my eye:
“The NCUC suggests that all policies adopted by ICANN affecting gTLDs must be approved by the GNSO. However, while the ICANN Bylaws grant the GNSO the right to recommend policies affecting gTLDs, such right is not exclusive, and policies may be recommended under the Bylaws by any of the advisory committees, including the GAC [Governmental Advisory Committee], ALAC [At Large Advisory Committee], and SSAC [Security and Stability Advisory Committee]. An example of a recent policy affecting gTLDs that was not recommended by the GNSO, is the policy to prohibit redirection and synthesized DNS responses by TLDs adopted by the ICANN Board on 26 June 2009, resulting entirely from an SSAC recommendation. Since the GNSO’s approval is not required, resolving the vertical integration issue through the implementation processes that are currently underway instead of through a PDP would be consistent with the ICANN Bylaws.”
This is a pretty astounding statement. First, the report openly admits that the vertical integration issue may raise major policy issues, but responds, in effect, “who cares?” There is, it claims, no need for a policy development process to resolve it. It invites us to “settle the vertical integration issue through the implementation process.”
Second, and even more significantly, the staff is telling us that it doesn't even matter whether it goes through the GNSO. The GNSO, in its opinion, is no different from an advisory committee, and the Board has as much right to disregard what the GNSO recommends as it has to disregard what any other committee or group offering advice says. There is, according to the staff report, no difference between an Advisory Committee and a Supporting Organization, despite what the name difference, evident in plain language, suggests. In this new theory of ICANN, the GNSO has no specific policy making role. Its status as the “home” or starting point of all policies related to generic names is not enshrined in the bylaws; its participation “is not required” either to initiate or to ratify policies pertaining to generic names.
What this means, for those of you not steeped in ICANN arcana, is that there is no such thing as a bottom up process in ICANN. There is just a vast, amorphous cloud of people and groups floating around the Board, (many of whom, like the SSAC, are directly appointed by the Board and make recommendations privately and in largely closed processes) and the Board can pick and choose any recommendation or idea emerging from that cloud that catches its fancy and use it to make policy for the global domain name system. None of the so-called bottom up entities – the Supporting Organizations – have any special status in making policy. The people who participate in GNSO and who fight for representation and influence within it based on the idea that the basic policies governing the DNS must go through that channel are, apparently, delusional.
This argument of the staff succeeds in making the rather radical analysis of our recent paper ICANN, Inc. look understated and even pallid by comparison. We pointed out there that ICANN was indeed a private corporation, and that corporations tend to govern in a top down manner. We pointed out how participation was offered by ICANN as a substitute for real authority and accountability. And now you have the staff not only agreeing with us, but rubbing our noses in it.