UPDATE: The ICANN Board just published the minutes from its meeting on Tuesday and intriguingly it has formally “triggered” the GAC-Board consultation that is explained in greater depth below.
That means the Board is prepared to say it disagrees with the GAC on 17 March and then, presumably, will approve the Applicant Guidebook at its formal Board meeting the next day.
On Tuesday I wrote a piece about the damaged decision-making process at ICANN at the moment. Right at the top I wrote:
Adding concern to the general vagueness is the inclusion of precise wording that means something specific, although no one is quite sure what. It is this:
“This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.”
This wording is indecipherable to any but the greatest of insiders. And that fact, combined with the reality that this Board-GAC meeting is one of the most significant Internet governance meetings in the past five years, makes it all the more frustrating.
Somewhat inevitably, people have emailed me saying “but aren’t you an insider? So what does it actually mean?” So, as briefly and as an coherently as I can manage here is my explanation for what this means. I am more than happy for people to disagree or add perspective in comments below; in fact, I’d encourage it. But anyway, here goes…
Bylaw provision
Since 2002, ICANN has had to tread a very careful line with governments. In the ICANN’s system they are only an advisory group – they cannot set policies or dictate the agenda. It was purposefully designed like this from ICANN’s inception in 1999. But, for obvious reasons, governments are not too enamoured with the idea of playing second-fiddle to anyone.
This became a really big issue in 2002 (roughly) and 2003-2005 were marked by the UN-run World Summit on the Information Society (WSIS) where many of the world’s governments effectively tried to take over ICANN’s role. Ultimately they weren’t successful – but only because of other governments. In short, if the world’s governments get together and agree something, it is done. And there’s not much you can do about it.
ICANN’s Board did a very smart thing in 2002 and pulled in Paul Twomey – who was previously head of the Governmental Advisory Committee, or GAC, at ICANN – as CEO. The Board needed a government person in charge to get ICANN through the WSIS process in tact. And so Twomey stepped up and effectively saved ICANN from being dismantled by the UN (it’s much more complicated than that but this is a very quick overview).
So…
With that background out the way. Twomey realised that for ICANN to survive, the GAC had to be given more sway in the ICANN process, especially on highly sensitive subjects such as who gets to the run country-code top-level domains.
Various changes were made – some public, some pushed through without people noticing – which gave the GAC a more influential position in ICANN. So now, while the GAC is still “advisory” the Board is *obliged* to inform the GAC about any issues it thinks have a public policy element.
It is also *obliged* to listen to the GAC and its “advice”. And also *obliged* to inform the GAC if it doesn’t agree with its “advice”. There is also a mechanism in the bylaws for when the Board disagrees with GAC advice and plans to make a decision that goes against it. They agree to talk about it. The wording is pretty vague – you can see it in Article XI, 2.1j.
You would think this was pretty simple but what has happened is that the Board and GAC have been warily circling one another over how to structure this conversation and process because it will set a precedent for future disagreements.
Unfortunately the result so far – sparked by the controversial dot-xxx application – has been lots of posturing but no definitive decision on how to approach it.
Surreal
So we had a surreal discussion about what actually constituted “advice” from the GAC (that was in June last year). And then the GAC told the Board that it felt *everything it said* was advice. This was not accepted by the Board because some of the “advice” was ambiguous or just noting an issue – certainly not enough to have to force the Board to start a formal process if it didn’t agree with it. This whole process took months and months with no useful outcome yet.
And then the Board pondered whether its intended decision would actually break the advice. So it asked the GAC if it felt it did. And so on, back and forth, with each party trying to pressure the other to make the decision for it. Then we finally hit the point where the Board is going to go against GAC advice and so, under the bylaws, have to have a discussion about that with the GAC to see if there was any compromise that could be made.
And then we entered a whole other surreal conversation about that process. Did the Board have to have that discussion before it formally resolved on an issue? i.e. did it have to break GAC advice before having the conversation? That seems odd, so how does the Board signal to the GAC that it is *going* to break GAC advice?
Assuming that happens, how then do you structure the conversation between the Board and GAC? Is there an obligation on the Board to try to change things? Or can it just say “sorry, we don’t agree with you, see you later”? What exactly is that extra step intended to do? And does there need to be a formal recognition that that special discussion is going to happen?
Get on with it!
So, finally, what the hell does the sentence: “This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process” that was added to the (very limited) notes about the GAC-Board meeting actually mean?
It means that the GAC would appear to believe that the final discussion between Board and GAC before the Board does or does not break GAC advice need to be something formally acknowledged and scheduled (as opposed to just a part of an existing conversation).
It also states that the GAC will not consider the 28 Feb-1 Mar meeting in Brussels as being this formal discussion. The rumour is that many GAC members simply refused to turn up if ICANN tried to say this was the formal discussion, so ICANN backed down and added this to the announcement. And by adding it to the announcement, ICANN is also implicitly acknowledging that, yes, the final GAC-Board meeting does need to be formally acknowledged.
And what does *that* mean?
It means that if the Board and GAC don’t reach agreement in Brussels, the GAC still believes that it needs to be formally consulted again before the Board can make a final determination/resolution on the issues they are discussing i.e. the new gTLD program and dot-xxx.
So while many people were holding out hope that governments would feel under pressure to reach resolution in Brussels at this special meeting (because the Board would simply say ‘you’ve had your formal consultation, we disagree with you, we’re done’), it is now explicitly stated that is not the case.
And so the pressure is off governments, and as a result everyone expects the GAC will now *not* reach agreement with the Board, which means the conversation will move to San Francisco *and* the Board will *still* have to have another formal consultation with the GAC before it makes a decision.
So there you go. Anyone actually read this far? Well, you did ask.