Will the GAC go away if the Board doesn’t follow its advice?

A video was posted of an ICANN staff member interviewing the Chair of ICANN’s Governmental Advisory Committee, Heather Dryden of Canada. The interview appeared on the ICANN website one day before the deadline for public comments about the Beijing advice issued by the GAC.

The Beijing Communique, hammered out in a closed room where no one outside the GAC could see what was said or who was saying it, demanded so many last-minute changes in policy, changes that required undoing or altering what the broader community had done, that a storm of controversy was raised. ICANN’s leadership decided to ask for public comment about the GAC’s advice. The board deserves thanks for giving the public a chance to talk back to the governments.

There is a lot of interesting material in the interview, but one part in particular caught our attention. The interviewer asks what the GAC will do if the board does not follow its advice – which, according to the ICANN bylaws, it has every right to do. He says,

Suppose the board says in the end, thank you very much for the advice, we’ve looked at it, but we’re moving on, and basically ignores a lot of that advice?

Ms. Dryden responded in this way:

I think there would be a very immediate reaction questioning the value of participating in the GAC.

If GAC is to be taken seriously as the place for governments to raise their concerns and influence decision making, Dryden said, then “we have to be able to demonstrate that the advice given is fully taken into account, or to the maximum extent appropriate, and in this way governments understand that the GAC is a useful mechanism for them.”

The interviewer asked point blank whether that meant that governments would pull out of the GAC if their advice wasn’t followed. Dryden replied,

Right. Why would they come? How would they justify coming to GAC meetings? Why would they support this model if there aren’t channels available to them appropriate to their role and perspective as a government?

This is an extraordinary response. Superficially, it appears to be a threat. The GAC chair does in fact seem to be saying that it is not enough to have their advice expressed and seriously considered by the board and the broader community. She demands that the advice not be treated as nonbinding advice (as per the bylaws), but as instructions or demands. Apparently her support for multistakeholder policy making depends on others following GAC’s orders. And if that doesn’t happen, they will take their marbles and go home.

But it is also an expression of frustration and desperation. The GAC is expressing the same helplessness that most other stakeholder groups feel when participating in ICANN’s complex policy development processes.Every single stakeholder group – certainly the Noncommercial civil society groups, but also registrars and registries and even trademark holders (despite the incredible favoritism shown them by governments and the staff) often feel as if they don’t get their way.

Isn’t that the point? Isn’t that the way democratic decision making works?

Have Ms. Dryden and the other members of the GAC ever thought for a moment about all the other people and stakeholder groups who participate in ICANN? Have they ever considered whether those others feel the same way about their views being influential and taken into account? If members of the GNSO, for example, work for months to hammer out a consensus policy among highly contentious groups and then their work is overridden at an arbitrary point by the GAC, would they continue to support and participate in multistakeholder policy making? Why would they continue to come?

Everyone who participates in ICANN offers the board policy advice. Thus, everyone who participates must ask themselves the same question: if we provide input into the policy process and ICANN’s board doesn’t follow it, why should we come? Civil society in particular is routinely faced with this problem. If the GAC’s advice is taken, and therefore it supersedes and negates all the work that the other groups have done, why shouldn’t all the other groups walk out? Would that be OK with the GAC? Because if everyone else involved adopts the same attitude the GAC seems to have, the whole edifice will collapse.

The main problem with the GAC advice is that it’s just poorly thought out. Read the comments of law professor Jacqueline Lipton, or the comments of the Noncommercial Stakeholders Group or the blog post of Kevin Murphy to get an idea of just how poorly thought out it is. We don’t care how hard you all worked on it, guys – the labor theory of value has been thoroughly discredited. We don’t care how many special interests you stroked file comments supporting you (including the vintners who don’t think we should be able to use the names of wines in the DNS without their permission), most of the proposals in the Beijing communique are an unimplementable mess.

Ms Dryden seems to be saying that the GAC’s policy advice, no matter how late and how badly thought out, no matter how few people express support for it, should be decisive simply because they are governments.

But isn’t there a name for that kind of governance? Don’t we already have intergovernmental institutions where governments have the final say? What is the point of having ICANN at all if it means that whatever the nongovernmental actors do can be overruled at the last minute by the determinations of a closed room of governments? How is ICANN different from the ITU if that is the case? Indeed, an ICANN-GAC is worse than the ITU, because any treaties emanating from intergovernmental organizations must be ratified by national legislatures and apply only to signatories. ICANN’s rules get imposed uniformly on the DNS whether you like it or not.

The Beijing Communique many turn out to be the GAC’s version of Napoleon’s march into Russia. GAC has been demanding an increased amount of control over the new TLD process for the past 5 years. It has gotten 80-90% of what it wants all along the way. But it keeps asking for more. It seems that a very important gauntlet has been thrown down. ICANN has to reject most of this advice, or it will literally be killing itself.

The ICANN board may indeed need to ask itself whether the GAC go away if it doesn’t follow its advice. But it also has to ask itself whether everyone else will go away if it does.