In multistakeholder settings, national governments often
claim that they should have special status because they represent “the public
interest” in policy deliberations. But how true is that claim? Do governments
actually intervene in these processes with a judicious, impartial eye toward
policy solutions that are the best for everyone? Or do they tilt the scales
toward the stakeholder group that lobbies them most aggressively and is most
likely to give their bosses campaign contributions?
A recent incident in ICANN provides some interesting clues
as to how governments really work. We now know that ICANN’s Governmental
Advisory committee (GAC) shared a draft policy statement with only one
stakeholder group in the GNSO – the trademark lobby – and kept all the other
stakeholder groups out of the loop.
ICANN has been debating whether to review its oldest, most
important policy, the Uniform Domain Name Dispute Resolution Policy (UDRP). As
part of its general accountability and transparency requirements, ICANN has
agreed to review and assess all of its organizational subunits and policies on
a regular basis. But the UDRP has always been a conspicuous exception. After a
dozen years it hasn’t been reviewed at all, despite the fact that a fairly
substantial amount of legal and social science scholarship about its effects
and flaws has developed. Big corporate brand holders are happy with the UDRP
and don’t want to even discuss whether it should be improved. The dispute
resolution service providers such as the World Intellectual Property
Organization (WIPO) are even more adamant opponents of a review. They make a
lot of money from UDRP cases and fear that process changes would disrupt the
And yet, there are some compelling reasons to at least take
a look at the UDRP. There are a number of obvious procedural flaws that could
be fixed, and ongoing debates about whether substantive changes could be made
to make it more fair. So at some point earlier this year, someone in ICANN’s
Generic Names Supporting Organization (GNSO) made a routine proposal to conduct
a review of the UDRP. Note that holding a review does not necessarily mean the
UDRP will change – that would require a consensus or at least a strong
super-majority among all stakeholder groups. It simply means that ICANN would
systematically assess the successes and problems of the procedure and consider
whether it could be improved.
Virtually all stakeholder groups involved in GNSO understand
the need for some kind of a review and the need to at least discuss changes and
improvements. The sole exception is the intellectual property lobby. But in the
GNSO, their opposition would not be enough to prevent a review. ICANN issued a
call for public comment on the issue of reviewing the UDRP and the results were
predictable. Registries, registrars and
noncommercial users all agreed that UDRP should be looked at. It appeared that
we were headed for some kind of a review.
Enter the GAC. On September 14 ICANN’s Governmental Advisory
Committee sent a statement to the GNSO chair strongly urging it not to conduct
a review of the UDRP. In a September 19 blog post Konstantinos Komaitis, the Chair of the Noncommercial Users
Constituency, noted correctly that this move by GAC was surprising. GAC is set
up to provide advice to the Board, not to the GNSO. As he wrote:
“…the whole issue of the UDRP
started in May, why send this letter now? The GAC did not participate
in the webinar [held by ICANN on a UDRP review in May 2011], did not
participate in the Singapore UDRP panel session [in June 2011] and did not
submit any comments on the issue during the public comment period [in July
2011]. Generally, I have never (and mean never) heard any of the GAC members
talk about the UDRP. So, why now? How did the UDRP become a priority of the
The answer emerged from a surprising source. If one opened
up the original PDF document sent by GAC and looked at its metadata, one noticed
that the entity named in the “author” field was “Covington and Burling.”
Covington and Burling is a Washington, DC law firm that also happens to be the
employer of one of the trademark lobby’s GNSO Council members, Kristina
When this information was exposed, on September 24 the
GAC Chair (Heather Dryden of Canada) sent a letter to the GNSO chair to mitigate the damage:
“One of my GAC members has alerted me to the blog
post cited below, asserting that the GAC position on the UDRP review
was somehow drafted by the law firm, Covington and Burling. In the event this issue might be raised during your Council call on September 22,
I felt it important to assure you that the GAC position was in fact drafted
by a small group of GAC members, circulated to the entire GAC list,
and edited by a number of GAC members before being finalized. It is my understanding that one of the GAC members involved in the initial
drafting exercise did consult with domestic stakeholders and accepted
a proposed edit from a lawyer with Covington and Burling to insert a
direct reference to the Board's rationale for approving the new gTLD
program, with a cite to that report.
For reasons I do not understand, the tag to the firm remained in subsequent versions of the draft and now
appears in the final version as well. That should not be understood by the GNSO Council to suggest that the firm drafted the GAC
text. Thank you for your attention to this matter.”
This explanation tells us a lot more than was probably
intended. It might contradict the worst-case scenario that the entire GAC
position statement was drafted by a law firm for the trademark owners. But
still, it openly admits that GAC only involved one stakeholder group in
formulating its position and gave them privileged and exclusive access to their
deliberations. It tells us that GAC submitted its policy statement to the
trademark lobby for its final approval before releasing it to the public. It
admits that the trademark lobby enjoyed not only “read” privileges in GAC
deliberations, but also the authorization to directly edit and modify its
position – a privilege afforded no other GNSO participant.
When the GAC Chair says that “one of the GAC members
involved in the initial drafting exercise did consult with domestic
stakeholders” what she really means is that the TM lobby made it clear to the
US Commerce Department that they didn’t want a UDRP review, and the Commerce
Department did what they could to accommodate that desire working through the
GAC. GAC then allowed the TM lobby to participate directly in its policy
Where, we ask, is the lofty status of governments as
arbiters of the public interest in this picture? It is clear that the GAC saw no public interest in the issue at all until the trademark lobby realized that it was
not going to get what it wanted and began to lobby the US on the issue. It is
clear that governments do not enter into these policy debates with open minds;
they simply pick winners and losers among stakeholder groups based on domestic
This is, of course, politics as usual. But it reveals,
with unusual clarity, just how fundamentally wrong it is to let governments intervene
in true multistakeholder policy making processes. In the new Internet
governance institutions with their own representational and deliberative
mechanisms, governments are an unfair and illegitimate redundancy. All they can
do is re-do and disrupt compromises and processes that have already occurred.
* For the record: Kieren McCarthy had nothing to do with these
revelations, although he may retroactively claim that he did.
2 thoughts on “Lifting the Veil on How GAC works: the UDRP Review incident”
The trademark lobby is not really opposed to UDRP change of course — just to a balanced process that might actually include some changes of benefit to registrants as well as rights holders. They attempted to get the thoroughly untested URS and other new “rights protections” written the .net renewal contract, and they also proposed that same as a required condition for any termination of registrar separation for an incumbent registry. Yet then they go and lobby the GAC to take the highly questionable position that the rollout of new gTLDs prevents any consideration of even procedural changes to the UDRP — the policy equivalent of” we can't chew gum and walk at the same time”. One hopes the GNSO will accord that position the deference it is due, which is not much.
I delivered comments on all this in Singapore which can be found at http://internetcommerce.org/node/277 .
Anyway, it's disheartening to see the GAC operate in this manner — we already have an IPC to push that perspective.
Many of us, from around the world, have had the opportunity to work with our GAC representatives and have had the opportunity to review some of their work in progress. I would not wish to condemn the GAC for this, and I thank them for the times they have spoken to me about some postion they were working on.
Also, while there is much I would fault the IPC for, mostly involving their acquisitive nature and tendency to mark the commons and call it property, I cannot view their tactics with anything but envy. If only we had the persistence and capabilities they did for getting their bug into everyone's ear. Perhaps we should be working harder for financial and other support to match their influence instead of condemning the GAC.
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