This is the most intensely political ICANN meeting I have ever been in, with the possible exception of Berlin 1999. Part of the cause is the GNSO structural reform, which has the various constituencies snarling at each other about vote distributions. Multilingual domain names, which combines market pressures with geopolitics, adds to the mix. But one of the main causes is the escalating power of ICANN's Governmental Advisory Committee (GAC).
GAC is gradually inserting itself ever more persistently into the so-called bottom-up, nongovernmental policy making process of ICANN. As this happens, the politics of ICANN become ever more high-level and difficult for ordinary Internet users to access. As this happens, some of the more ambitious members of the GAC are chafing at its “Advisory” status. It is evident that many governments have trouble understanding the idea that their role is only to provide advice and guidance to ICANN on matters within their jurisdiction, and that they are (supposed to be) one of many “stakeholder groups.” Which goverment has the most trouble here? The answer may surprise you. It is not China or Russia, or some other authoritarian state. Nor is it Brazil or South Africa, or any other state that led the charge against ICANN during WSIS. No, it is the USA. On the critical policy issues facing ICANN, notably new TLDs and Whois, the US has made it clear that it wants GAC policy “advice” to be implemented by the ICANN Board directly and without regard to what the bottom-up [sic] policy making organs do.
But fortunately, there are some people within ICANN willing to assert its autonomy and stand up to state pressure. The following dialogue between ICANN's Board Chair Peter Dengate Thrush reveals an unexpectedly stiff spine. In the following exchange, the US GAC representative, Commerce Department's Suzanne Sene, is badgering ICANN's Board about GAC's advice that it do “studies” on Whois – privacy. We repeat the exchange here with only a few excisions. It makes for delightful reading. The Board chair politely but firmly explains to the US government how ICANN — an organization it set up — is supposed to work.
UNITED STATES OF AMERICA:
I appreciate this opportunity to have this exchange with the board. … As you all know, in April, the GAC forwarded a set of recommendations for WHOIS studies to the board. And we have received a very gracious response. Thank you for acknowledging our overtures to the board. I have some questions, as we have reviewed the letter back and reviewed the status, which — the letter, by the way, refers, quite consistently, to ongoing deliberations within the GNSO on the issue of whether or not to conduct WHOIS studies. And we have been very well aware of that initiative in the GNSO, and, in fact, have consistently been engaged in dialogue with the GNSO on this matter.
We sent them our GAC recommendations as an FYI, as a courtesy, as they were contemplating what they might do. Having your letter in hand, Mr. Chairman, it's dated May, and being aware of what is in the GNSO WHOIS study group report, which has not yet been voted on, it's — we felt it was imperative to put the question to the board as to because the GNSO Council report actually has two diametrically opposed position, one is to do no studies at all and one is to do some studies. From the GAC's perspective, and we respect the GNSO's processes, we are certainly mindful that the result could be no studies. And we think that is up to the GNSO to decide. But from the GAC's perspective, our request that you undertake studies still stands. So we would appreciate some clarity there that, notwithstanding whatever the GNSO does or does not decide to do, that ICANN will undertake the studies recommended by the GAC in its recommendation.
CHAIR KARKLINS: Peter, would you like to respond?
PETER DENGATE THRUSH: Yes. Yes, thank you.
The simple position is that we have not yet heard from the GNSO. So it hasn't completed its process. So we're not yet in a position to respond any further. When we get their response, we'll then — we may then have to make the decision that your question implies. But until then, there's nothing more we can do.
UNITED STATES OF AMERICA: Well, if I may, I think I would echo a comment made by my colleague from Brazil. We are talking about a procedural situation where the GAC is now in a situation where it's not entirely clear to us where our recommendations go, where our advice goes, and is it contingent upon approval by another body within the ICANN community? Or is it going to be acted on by the board directly?
And so your guidance and feedback in that regard would be most helpful to us, because our understanding of the bylaws — perhaps we are interpreting them too literally, but it's fairly direct — we are structured to provide advice and guidance to the board, and it has never been clear to us that acting on our advice is contingent upon a decision by another supporting organization.
So some clarity there would be very helpful, because it would help govern our work program.
CHAIR KARKLINS: Thank you, Suzanne. Peter, would you like to comment? Or I will turn to law enforcement officers.
PETER DENGATE THRUSH: I'm just looking for some data, because I might be able to advance this in a few moments. So perhaps we could hear from the law enforcement, and we'll come back to you.
[time passes, filled with another law enforcement agency trotted out by the US government to insist that they “need Whois” except it turns out that it's IP address Whois and not DNS Whois they need.]
PETER: I just took the time to have the staff collect the timing of this so that I can properly answer Suzanne's question. The GNSO Council voted to reject the OPoC proposal in October 2007. And it decided at that meeting that it would conduct comprehensive objective and quantifiable studies about WHOIS. And at that same meeting, the GAC communiqué strongly supported the idea of studies and promised to supply details of the sorts of questions that should be included in any study. Then in March of this year, the council formed a group to review the suggestions and recommend what study should be done. And in April, on the 16th of April, the GAC recommendations for the — for inclusion in those studies were received. Now, there has been some dispute and debate in the GNSO about what and if and whether to do the studies. Until that decision is resolved, the board is satisfied that the process is being properly dealt with by the proper organ in ICANN for conducting this exercise. I'm informed that it's expected that a final decision will be made by the GNSO this week.
If the studies go ahead, then that will be the resolution of that matter. If the studies do not go ahead, the board will then be faced with what it should be doing in order to comply with the GAC request.
[end of transcript]
So there you have it. According to the ICANN bylaws, if the Board doesn't accept the GAC's advice, it must provide an explanation, but it may not follow it. It provides a small measure of satisfaction that a leading Board member is willing to stand up to USG pressure and say that rather than the more common pattern of obsequiously assuring State that it will be willing to accommodate its wishes regardless of the formal process that other stakeholders participate in.