ICANN* has a problem. One could even call it a disease – an organizational version of Sydenham’s chorea. What are the symptoms? This: ICANN has in place elaborate, well-defined, and reasonably balanced representational mechanisms for making policies. But every time it has an important decision to make, ICANN tries to reinvent the whole process from scratch. This kicks off a vicious and chaotic political struggle in which various groups try to predetermine the outcome by enlarging their own representation and diminishing the representation of their enemies.
That is what is happening now, as ICANN attempts to revise its policies in the light of the need for compliance with the General Data Protection Regulation (GDPR). Instead of using its Generic Names Supporting Organization, with its well-defined and well-balanced stakeholder groups and defined policy development processes (PDP), ICANN has created an “expedited PDP” (ePDP). The need for faster action than normal is clear in this case. But instead of simplifying the normal process, ICANN has complicated everything by throwing all kinds of additional groups into the mix, while trying to enlarge the representation of some groups at the expense of others. Is this just madness, or an attempt to stack the deck?
The stakes are high. The ePDP’s decisions will develop a policy for compliance with the GDPR, and this will have an effect on the privacy of domain name registrants. We need help and support from others in monitoring this process.
The Generic Name Supporting Organization Council is currently discussing the membership structure of the ePDP. In the interest of quick action, it has been agreed that the ePDP will have a fixed number of members rather than the open membership of a normal bottom-up Policy Development Process. The obvious – and quickest – thing to do is to have the membership of the ePDP mirror the representational balance of the GNSO. It also makes sense to add participants from the Advisory Committees (At Large, Governments and Security and Stability) to get their input. But the Advisory Committees (ACs) are not mandated to make policy in ICANN – they are advisory in nature, and so their representatives should not vote or be part of determining consensus.
At first, discussions in the GNSO pragmatically supported a group that would have had an equal number of representatives from each Stakeholder Group: 3 from the Noncommercial Stakeholder Group, 3 from the Commercial Stakeholder Group, 3 from the Registries Stakeholder Group, and 3 from the Registrars Stakeholder Group. Each stakeholder group could internally determine how its constituencies appoint members.
This was the Council’s train of thought for six weeks, both before and after the ICANN Board adopted the Temporary Specification. But then ICANN’s disease flared up. At ICANN 62 in Panama City, they added GAC, ALAC and SSAC and considered them full members of the ePDP. On the morning of 27 June, the lead of the drafting team on ePDP composition, Keith Drazek of Verisign, introduced text that would ensure each constituency within the Commercial Stakeholder Group (CSG) would receive more members on this team than anyone else. His proposal was for each commercial constituency to receive 3 members, which would give the CSG a total of 9 members on the ePDP, while all other stakeholder groups would have 3 members in total. He explained the rationale:
Keith Drazek (27 June): “Essentially, what we’ve done is we’ve provided more participation per stakeholder group and constituency in a couple of cases, right, specifically BC, IPC, and ISPCP. More participation. You’re getting more people on this group to actually provide input, engage in all of that, than, for example, registries and the registrars.”
What Drazek didn’t say openly was that the participation given to the Commercial SG was triple that given the Noncommercial Stakeholder Group, and that the NCSG and CSG positions on Whois/privacy issues are diametrically opposed. So in effect, Drazek said they’ve tilted the scales.
When NCSG demands parity in the number of members for each stakeholder group, Drazek and his commercial counterparts argue that numbers do not matter. There is no voting procedure, they say, it’s all based on consensus and the additional members just allow for additional viewpoints. But the contradiction in this argument is blatantly obvious. If numbers don’t matter, why does the CSG need to have 9 members instead of 3 to express those views? It is obvious that the IPC or BC do not bring “different” viewpoints to the table. They agree 100% on all Whois issues. Why can’t 1 member of each CSG constituency bring that view forward? If more viewpoints are better, why can’t NCSG have 9 members, too? Either the number of members doesn’t matter, so we can return to the balanced 3 members per stakeholder groups threshold – or they do matter, which means that the NCSG will need as many members as the CSG.
Numbers do matter, both in terms of the level of participation and the “consensus determination.” More active participants from one point of view means more people expressing the same position, which makes it seem like there is more of a consensus. With CSG representation tripled, it will be easier for them to relegate NCSG privacy advocates to a minority “in the rough” part of “rough consensus.”
In addition to being unfair, the addition of 6 more IPR advocates onto the ePDP has dire budgetary consequences. ICANN has to pay to fly these people around to meetings. It was originally agreed that the size of the group would be small to keep costs contained. Adding these additional members busts the budget. During the meeting, NCSG Council member Ayden Férdeline asked Drazek why he was proposing to give the CSG more seats than the NCSG, Drazek said:
“But because we’re trying to limit the number [of ePDP members] to keep it small, efficient, effective, and economical, it’s caused this requirement to sort of try to structure this in way that we’re having good meaningful equal representation but try to maintain some respect for the structure that we have in the Council. That’s what I’ve tried to accomplish here.”
How does one keep the group small, efficient and economical by adding 6 members? Give each SG 3 members, as originally proposed, and the group is smaller. A recent offer for compromise would give each constituency of the CSG 2 members instead of 3. But that still gives the IPC and BC 4 in total, which is one member more than NCSG. That is still not fair and balanced, and it still expands the number of members. Bear in mind that the GAC, ALAC, and SSAC members all hold positions on Whois similar to the CSG. So they are really stacking the deck. The IPC and BC don’t need additional members to stack it further.
By playing this political game, the CSG have already undermined the “expedited” nature of the PDP. We are wasting time fighting about process and representation rather than reviewing and ratifying the temporary specification. It’s unlikely that the ePDP will be chartered this month. We invite everyone to pay attention to that and come to a compromise since as Mr. Neylon , a member of the Council from the Registrar Stakeholder Group, said:
“In the absence of clear decisive action on the part of the GNSO Council, the ICANN Org could potentially try to progress things or take some kind of action that they would deem to be helpful and constructive, but based on past experience with their concept of helpful and constructive, it would probably be the exact opposite.”
There is another odd thing about the proposed composition of the ePDP. All of the Advisory Committee representatives are considered full, voting participants, which is inappropriate given their role in the ICANN structure. The Whois temp spec is a domain name policy matter, so GNSO members should be making policy. Even more bizarre, the country code top level domains supporting organization (ccNSO) is given as much representation as most of the GNSO stakeholder groups. But ccNSO members are not subject to ICANN contracts. They are not bound by the temporary specification at all! Why should they be involved in formulating the policy for it?
On a final note, I could not have written this blog had it not been for the access I had to transcripts of the 27 June meeting. We need transcription for all the ePDP meetings, for very good reasons! Yet the same people who are proposing to balloon the size of the ePDP by 6 additional people (adding tens of thousands of dollars per meeting) are saying we cannot afford to spend $500 for transcripts of the meetings! Transcripts are an essential part of transparency and accountability at ICANN. It seems their priorities are out of place.
* In this blog, by ICANN we mean ICANN community and not ICANN org.