GAC as “first among equals:” the danger in the accountability plan

How will ICANN’s Governmental Advisory Committee (GAC) handle the dilemma it has been put into by the community empowerment mechanism?

The dilemma I am referring to is this: does the GAC want to participate in the community empowerment mechanism as an organization, with voting seats, or does it want to have a privileged advisory role like it has today with respect to the ICANN board? Or does it want both?

I’ve been reviewing the transcripts of the ICANN 53 (Buenos Aires) meeting in an attempt to understand how GAC might be approaching this question.

Some people defend making the GAC part of the community empowerment mechanism by invoking the concept of “equal footing”  for stakeholders. While reading the transcript today I was hit over the head with reminders of how wrong this argument is. Here are the simple facts:

1. The GAC does not have equal footing now, it has superior footing.
2. The GAC knows this.
3. The GAC does not want equal footing in the future, it wants to retain its superior footing.
4. Some members want to further strengthen their ‘footing’ to make it even more superior

It’s all written down in black and white, in multiple languages, from the June 21st, June 23rd and especially the June 24th transcripts. The GAC members realize that the privileged status of their advice under the ICANN bylaws gives them an extraordinary amount of influence over ICANN’s policy making process.

Here we see the UK representative to the GAC worrying about whether empowering the community will make GAC lose its superior status.

UK: “we have our first amongst equals status under the current arrangements, and we are grappling with how to ensure that that is retained against proposals which are going to empower other parts of the community in the successive regime.”

Portgual chimed in with an even stronger claim. The power of governments within ICANN to define policy should be unlimited:

PORTUGAL: “our position is that the public-policy issues obviously have to be dealt with by the government. Obviously governments [should] not be limited in [any] respect. So any wording in the proposal or in the text referring to what the governments do or don’t do within a certain boundary, provided that there is a limitation to the role of governments, I think that this would be unacceptable, because you cannot limit the role of governments in these kind of issues. At the same time we need to be first among equals.”

How about America, land of the free?

USA: So I couldn’t agree more with Portugal. We are first among equals. We wish to see that continue.

The quotation above ought to be a very nice antidote to what I call L. Gordon Crovitz disease, the idea that America is exceptional and it’s only other governments, not governments per se, that we need to worry about in the transition. (But Crovitz never let facts get in the way of his arguments.)

Spain made a ringing endorsement of the unequal footing argument:

SPAIN: From our point of view, we have to maintain the status quo of GAC as first among equals within the ICANN ecosystem. This is key.

Indeed, Spain wins my prize for the GAC’s most ardent statist. Their representative worried about the possibility that an empowered community might “defy ICANN board decision that are based on GAC advice.” Something needed to be done about that, Spain suggested:

maybe we can think of reasons or instances in which the community could not exert their powers against government decision — board decisions based on government advice.

Brazil, showing that little has changed there since 2005 (or 1895), had this to say:

And that’s why, therefore, [we] support in the new ICANN accountability framework a more significant involvement of governments that goes beyond the merely advisory role that the GAC holds today.

China sounded a similar theme:

We cannot make the conclusion right now to say the GAC will forever just be advisory body,

Solidarity among the BRICS: here’s RUSSIA:

…we totally agree with Brazil that this level of decision-making and the role of governments cannot be lower than it is today at this level.

Very nice to see the harmonious relationship between the US, Russia, Brazil, China and Europe here. The world’s states are united in their determination to preserve and possibly expand their power at the expense of the Internet community! Out of fairness, let me note that Denmark offered a word of caution:

from a Danish point of view, it’s very important that nobody, no individual, no organization even government can capture the organization in the future. That’s why we think it’s important to keep the rule that the Board only have to take into account the GAC advice when it’s in consensus.”

These sobering facts need to be reflected in our assessment of the CCWG proposal for enhancing ICANN accountability. The CCWG proposal would make the GAC a voting member in the community empowerment mechanism. This concept is usually rationalized in the name of “equal footing” for different stakeholders, but the GAC transcript blows their cover: They are first among equals and they revel in it. Governments would only use participation in the community mechanism to protect that special status and would probably attempt to expand it.

This blog has criticized including Advisory Committees in the community mechanism, but I, at least, am reconsidering> If we give GAC equal status in the community mechanism and TAKE AWAY their special advice status, we are closer to “equal footing” than we are now. Indeed, it may be that the privileged advisory power is more dangerous and distortive of ‘equal footing’ than their participation in the community mechanism would be. While many of us assume that GAC’s “Advisory” status limits its power, in fact when it is used strategically it elevates governments above all other stakeholders in the policy making process. If one reviews the history of the new TLD program, for example, one can see how GAC advice was repeatedly used to provide the “last word” that could delay, hijack and change the policy developed by the GNSO. So maybe we should force the GAC to choose between privileged advice or participation in the community mechanism. Or, maybe we should actually prefer their inclusion in the community mechanism to continued special status of advice.

Two things to avoid like the plague:

• Giving GAC BOTH privileged advisory status AND participation in the community mechanism
• Giving GAC a similar privileged advisory status over the community mechanism (e.g., GAC would not participate directly but would “advise” the empowered community, which would translate into an effective veto, delay or dilution of the community’s powers).

It seems unlikely that the special advisory power would be taken away. So if we don’t oppose their inclusion in the community mechanism, there is a risk that they will get both. Indeed, it seems highly likely to me that many members of GAC will respond to the CCWG dilemma by demanding option 1) or 2).  The Internet community needs to be alert to this threat. Reassuring aphorisms about “equal footing”  can obscure a rather Orwellian reality that all animals are supposed to be equal, but some are more equal than others.