One of the more pressing problems at ICANN is the participation of governments in the policy development process. All too often, the outcome is an eleventh-hour intervention from the GAC which short-circuits the GNSO bottom up policy making process. This is not for lack of effort to correct the situation. Both the first and the second Accountability and Transparency Review Team (ATRT) reports [1, 2] flagged the problem and included suggestions for improving it. ICANN has spent a lot of time and resources on improving GAC’s visibility into the GNSO’s policy making process. More recently, a GAC‐GNSO Consultation Group was formed to examine and develop proposed solutions to enable greater cooperation and coordination between the two bodies.
The latest effort is close to producing results. In its London Communique, the GAC agreed to several proposals from the Consultation Group. In particular they agreed to:
- Appoint a GNSO liaison to the GAC for a one year pilot period, starting at the next meeting in Los Angeles;
- Provide liaison support through existing GNSO Council policy development process (PDP) liaisons;
- Survey GAC members on possible mechanisms for early awareness of policy issues that GAC would be interested in;
- Further analysis of how GAC involvement in PDPs could be managed on a sustainable and workable basis.
Following this, the GNSO issued a request for candidates (completed yesterday) for the GNSO-GAC liaison position. It read like a mashup of typical positions in and around a Congressional office, including legislative director and aide, among others. The GNSO sought an experienced expert on GNSO processes who is attuned to numerous government concerns on any particular issue being discussed, and was capable of attending all GAC sessions and explaining to GAC members when and how to effectively intervene. And oh, they also happen to be a volunteer.
There is no need to doubt the sincerity of the actors trying to solve the problem. However, any political scientist evaluating this proposed solution would predict failure. Despite the GNSO’s best intentions and the liaison’s best efforts, GAC members will probably continue to make the GAC a parallel policy making process that will often conflict with and attempt to supersede the GNSO. The reason for this is that the incentives of the two policy making organs, GNSO and GAC, are misaligned. The GNSO wants the GAC to participate in its own policy development process (PDP) in a more timely and effective fashion so that its own PDP will be the authoritative one. But GAC still wants to have the last word. Why would its members embrace the long and hard work required by participation in GNSO processes if the main result is to prevent the GAC from having the last word on making policy? They would no longer be able to make policy pronouncements in their own silo – they would have to listen to, bargain with, and compromise with all the other stakeholders.
So it is unrealistic to think that GAC members will fully avail themselves of opportunities to synchronize their policy making process with the GNSO’s. GAC will continue to selectively not participate and claim that it was not included in or aware of GNSO activities so that it can continue to get a “second bite at the policy making apple.”
The only way to solve this problem is for the ICANN board to ensure adherence to the GNSO policy development process. The board will have to bite the bullet and stop permitting second bites at the policy apple. The board will have to make it clear to everyone involved, including especially GAC members, that policy for domain names is developed in the GNSO and GAC can only provide advice on those policy outcomes, it cannot reformulate or make policy. If the GAC finds an outcome unacceptable, the policy will have to return to the GNSO. If ICANN’s board is truly committed to a multistakeholder, bottom up PDP, ICANN must ensure that its PDP achieves predictable results and that the strenuous efforts of the participants in its bottom up processes are not circumvented or ignored.