Reform ICANN’s Governmental Advisory Committee: Multi-stakeholderize it!

Finally, what you’ve all been waiting for: the right way to fit governments into what is supposed to be ICANN’s bottom-up, multi-stakeholder policy development process. The ideas in this blog post came out of some fascinating discussions we had at the European Summer School on Internet Governance. In particular, I’d like to call out Thomas Rickert, Bertrand de la Chapelle, and Wolfgang Kleinwachter (Head Professor of the Euro-SSIG) as people whose challenges and ideas helped me to shape this proposal. Not that any of them should be held responsible for it.

For a long time I have advocated abolishing the GAC. The reasons are many. Governments, with their hierarchical structure, cannot easily participate in flexible, working group-type policy development methods. Most governmental representatives simply don’t know enough about the issues ICANN deals with to contribute, and cannot allocate the time needed to participate in the intensive, email-list-based working groups that hash out ICANN policies. More fundamentally, qua governmental representatives, GAC members cannot advocate or agree on policy positions or compromises without consulting with their superiors, and thus they cannot participate usefully in an evolving working group consensus. And yet, ICANN’s bylaws authorize GAC to offer privileged “advice” to the all-powerful ICANN board on the policies developed in those working groups. Usually the advice comes after the rest of the multi-stakeholder community has come to a hard-fought compromise, and basically amounts to asking everyone to re-do what they just spent two years working on. All too often, GAC advice involves substantive policy proposals that have been considered and rejected before, or does not take into account arguments or information that emerged from a working group. And at its worst, the GAC process is manipulated and gamed by special interests, who, when failing to get what they want out of the legitimate policy development process, lobby the GAC to reverse or change those results. In short, the GAC has turned into a parallel policy development process that threatens to override and completely devalue the business and civil society policy making process in ICANN’s Supporting Organizations.

More to the point, by locking governments up in their own little room and telling them they have special rights to second-guess the community’s policy development process, we encourage them to think, act and control like…governments. The GAC structure also indulges governments’ fantasy that they somehow “represent” the whole of the Internet community in their jurisdiction by giving them a privileged status in respect of “public policy.” But the whole purpose of creating ICANN was to remove DNS public policy from the realm of fragmented territorial jurisdiction and to empower the global internet community to self-govern. In all the hysteria we have heard about UN attempts to “take over the Internet,” how many people have been observant enough to notice that the membership eligibility of the GAC and the membership eligibility of the United Nations are exactly the same?

Do not scoff at the risk that GAC will turn into a de facto UN for the Internet. They have already reached for fairly extensive regulatory powers in areas such as censoring new TLD applications, surveillance of domain name registrants, and so on. What makes the GAC even worse than the UN, however, is that its policy advice is not bound by any legal or treaty-based constraints. It can ask for whatever it wants. The ICANN board makes authoritative, globally-applicable decisions about DNS policy. Insofar as the GAC can pressure or control those decisions, it can exercise real global power without any law or accountability of the sort that applies to democratic governments or intergovernmental treaty organizations. As an example of the latter, the U.S. government has advocated in the GAC that ICANN censor or veto domains on the basis of their content or meaning. If this happened within the US, as a direct, official act of the US government, it would be plainly unconstitutional. But by exercising power under the cloak of a private corporation, the US-dominated GAC can get away with it. Where is the treaty that defines what the GAC can and cannot do to the Internet? Where are the national ratification processes that allow citizens in each country to accept or reject such a treaty? The answer is simple: there are none.

So there are powerful reasons to view the GAC as something that we should all want to get rid of. My friends at the Euro-SSIG did not reject these arguments. They agreed that GAC’s interventions in the policy development process have been disruptive, that governmental representatives and bottom up, working group-based policy development do not mesh, and that most of the mid-level governmental officials in the GAC simply cannot keep pace with the process. But they pushed back against the idea of abolishing the GAC. They expressed legitimate fears that simply abolishing the GAC would isolate ICANN from governments and make Internet self-governance even more controversial and vulnerable than it currently is. They viewed the GAC as an educational process that acculturates governmental representatives to the Internet’s self-governance processes. They expressed an optimism (which I do not share) that over time the GAC’s inability to mesh with multistakeholder self-governance will ameliorate.

This made us search for some kind of middle ground between the status quo and abolition. And then it hit me. The problem with the GAC is not that governments are present. Indeed, when I called for abolishing the GAC what most people heard was, “people in government should not be allowed to participate in ICANN at all.” That is not what I have meant. People who happen to be within governments have lots of expertise and useful perspectives. There are many people wearing a governmental hat who can and do contribute positively to the process. The real problem is that the GAC is constructed along the model of an intergovernmental organization. Each government is considered to be a unitary actor, with a single, official viewpoint, just like a UN delegation. By locking the governmental participants into this model, we effectively mandate that GAC will act like an intergovernmental organization. We recreate the dynamics of inter-state politics, and the sluggishness of an intergovernmental organization.

To fix the GAC, ICANN needs to break out of that unitary state model. It must move decisively away from the idea of a single, official national representative. It can do this by opening up GAC membership to governmental stakeholders from all levels of government, and from all the different agencies and perspectives within governments. The GAC should be open to law enforcement agencies as well as data protection agencies; to parliamentarians of the minority party as well as the ruling party; to experts from telecommunication regulatory authorities, national CERTS, and so on. The GAC should embrace the diversity and multiplicity of modern governments. There should be no official representative of the United States or the Netherlands, for example; there could be someone from the U.S. Federal Communications Commission, or the Dutch antitrust authority, or the consumer protection agencies of each country, or GovCERT.NL or US CERT, should those agencies be interested.

Currently, the GAC operates as an ersatz intergovernmental organization, in which each nation-state has a single representative and a single spokesperson, and pretends to have a single national position. Nation-states participate as nation-states. This is quite a dangerous approach. If you give the GAC all the trappings and institutional forms of an intergovernmental organization, it is only a matter of time before it becomes one and demands the same hierarchical policy making authority as governments. An intergovernmental GAC invites inter-state politics into ICANN; e.g., the US and its allies vs. Russia and China, or Israel vs. Arab states. Indeed, the GAC is already demanding a Secretariat of its own, just like the ITU or WIPO.

What is the alternative? The alternative is to make the GAC into a truly multi-stakeholder forum for governmental interests of all kinds. GAC should not give nation-states a single voice and representative; instead the GAC should be open to any governmental agency that wishes to send a delegate. All of these participants would have equal rights, and they could caucus and coordinate with governmental representatives of any nation, rather than only colleagues within their own government.

In such a scenario, only governmental employees with knowledge of and a true interest in ICANN and its issues would come to ICANN meetings and participate. No longer would we get half of the GAC composed of clueless people who attend only because they have been officially assigned to that role by some higher-up. The level of expertise and diversity of participation would be extremely healthy. In some ways, this proposal is just as radical as abolishing the GAC, but much more inclusive and encouraging.