Lifting the Veil on How GAC works: the UDRP Review incident

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

gravy train.

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

GAC?”

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

Rosette.*

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

formulation process.

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

political considerations.

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.