The EU needs new and better representation in ICANN. Its operatives
in the Governmental Advisory Committee (GAC) are failing to uphold European values related
to free expression, open internet and bottom up governance. EC representatives
in ICANN are utterly devoid of any vision of what kind of policies they want or
what values they wish to uphold. The EC seems interested only in more power for
itself – even though it has no clear idea what it wants to do with that power. So
it has locked itself into a reactionary position. It is turning its back on
bottom up, multistakeholder governance and, amazingly, it is appealing to the
United States to exert unilateral authority over ICANN in order to pursue its
apparent goal of a governmental takeover of ICANN. It is a sorry spectacle.

Those are strong charges; but there is plenty of
evidence to support them. First, there is Commissioner Kroes’ recent speech at
the European Internet Governance Forum (EuroDIG)
. Second, there is the truly
embarrassing letter she transmitted to NTIA’s Lawrence Strickling, asking the
U.S. to discard the results of an ICANN policy process. An important fact to keep in mind, however, is that Kroes herself
did not write the Strickling letter but relied on her GAC representative for
its content. This is why we are calling upon Europeans to think more critically about who is
representing them in the ICANN process, and what they are doing in Europe’s

In her EuroDIG speech, Kroes puts forward, once again, tiresome
excuses for more delays in ICANN’s new top level domain process. She seems
to be unaware of the fact that all the issues raised by GAC have been debated
for years before, and that ICANN’s stakeholder representation
process, despite its flaws, is the best place to resolve them. She claims,
falsely, that there is no community support for the new TLD program, when in
fact the current program has obtained as much support as any policy proposal on
this topic could ever possibly achieve. She overlooks the fact that GAC proposals have less support in the relevant communities than the policies they are trying to replace. Her scripted attack on the new TLD
process contains no serious policy analysis or substantive critiques. Kroes’
speech advances no ideas, no vision, no values regarding specific policies and
principles that should be guiding ICANN.

There is an explanation for the missing
substance. This is not about domain name policy. This is just a power struggle.
The European Commission has no objective except that it wants to be more influential. So it is trying to force ICANN to modify the results of its long,
laborious policy development process and
substitute governmental judgments at the last minute. The only point of this exercise is to allow the GAC representatives to go back to their superiors (and the business lobbyists) and boast that they “got something” from ICANN. This is wrong. European
citizens should stand up against it.

Kroes accuses ICANN of acting against GAC advice by
approving the .xxx domain. This is simply false. The GAC did not provide consensual
advice against approval of the .xxx domain. Its advice stated that some
governments were against it, but noted that other governments did not oppose
it. Put simply there was no consensus in the GAC against the .xxx
domain. And even if the GAC had proffered consensus advice formally opposing the .xxx domain,
it is a long-standing, well-known feature of ICANN’s legal constitution that the GAC is an
advisory body. The Board can make decisions that contradict GAC advice as long
as it follows a certain process. Is the
European Commission calling for the replacement of ICANN with an
intergovernmental treaty organization?

Kroes also advanced the now thoroughly-discredited argument
that approving controversial domains harms internet stability because some
states will block them. As we have argued elsewhere, millions of web sites are
already blocked, and there is no gain in stability – and a tremendous loss of
freedom – if we try to avoid local blocking ex post by instituting globalized,
ex ante blocking. Another good discussion of that issue can be found here. Why is Kroes allowing her GAC representative to continue to circulate these phony arguments?

But one has to read the leaked letter to the U.S. Commerce
to see how rudderless the EC has become. 
Once upon a time, the EC took a principled stand against U.S. unilateralism in
Internet governance. Once upon a time, the EC warned against the kind of
arbitrary and unaccountable power that could flow from a single government’s intervention
through the IANA contract
.Now, the EC is sending secret letters to the U.S. explicitly asking it to
(ab)use its unilateral power to reverse a duly constituted independent review
process decision and an ICANN Board decision. It is quite shocking. How many European citizens are aware of this action?

Kroes and her GAC representative have now backed themselves
into a corner. Like Secretary Strickling, her colleague in the U.S. Commerce Department, the EC now seems to be claiming that unless ICANN treats GAC advice as instructions and
follows all of them slavishly, then there is something fundamentally wrong with
ICANN. ICANN, she suggests, should be “fixed” so that governments always get their way. So despite Kroes’ claims to the
contrary, this really is a call for a radical departure from multi-stakeholder, private sector
based governance. People in the ICANN community who support its innovative governance model need to take this problem very seriously.

Before it talks of ICANN accountability, the European
Union needs to pay more attention to the accountability of its own
representatives in the ICANN process. Who in Europe supports unilateral and arbitrary U.S. policy decisions over domain names and IP addresses? Who in Europe wants governments to take over ICANN? Outside of a few trademark holders – who are already overrepresented inside and outside ICANN- how much support can the EC bureaucrats demonstrate for their interventions in the process?

In the upcoming Singapore meeting, civil society and business need to break through the little silo that GAC representatives encase themselves in and talk some sense to them.