GAC Advice largely unworkable

The position of GAC and its importance in the ICANN new gTLD progress is being placed in a very tight spot over the relevance and the practicability of the recommendations that it has offered on the new gTLD applications and more specifically the Safeguard Advice.

GAC entered ICANN as one of the arms that would be instrumental in as much as to

“provide advice to ICANN on issues of public policy, and especially where there may be an interaction between ICANN’s activities or policies and national laws or international agreements. The GAC usually meets three times a year in conjunction with ICANN meetings, where it discusses issues with the ICANN Board and other ICANN Supporting Organizations, Advisory Committees and other groups.”

There seems to be a general consensus that the advice provided for the new gTLD programe in Beijing was largely unworkable and only good at delaying the process. Majority of the public comments that have been sufficiently provided to ICANN as part of the guidebook procedures are telling ICANN to consider quite carefully how it deals with the GAC advice. “Finally, the GAC’s advice is self-contradictory. While calling for a clear and comprehensive regulatory regime, it leaves plenty of room for discretion” comments by Istituto Bruno Leoni

Among the two applicants given a “kiss of death” consensus advice, the applicant for .gcc has slammed the advice as too late in the day

“As an initial matter, the applicant Guidebook states that for the board to be able to consider GAC advice, it must be passed on 13th March, we presume you will reject this advice sa untimely. We would appreciate clarity from the board on this point” as well as that I understand that the GAC has issue formal advice regarding the new gTLD application for .GCC, suggesting (without any reasoning) application be rejected”

The general feeling is that GAC may have rushed into providing the advice without thoroughly examining the details as well as giving substantive backing as to why the safeguard advice and the categorization arose. Sentiments also are alarming that GAC may be giving recommendations that would mean rewriting the guidebook that took so much time to develop.

GAC Chair Heather Dryden while commenting on the Beijing Communiqué told the ICANN staff in an interview that if ICANN chose to ignore the advice,

“I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them.”

This is seen as more of a threat that GAC is a force that must be listened to, this though cannot be done in Isolation as it would mean that other committees are rendered insignificant, such as the GNSO who have been instrumental in most of the policy development processes

Some of the comments weighing in on the issue include

Touching on the timing of the GAC advice and how it affects the entire process’

ICANN should not adopt any of the recommendations raised in the Beijing Communiqué. These recommendations have been made too late in a process that is already underway, and under which large sums of money have been invested by applicants in reliance on previously released ICANN guidelines. Additionally, many applicants have made plans for innovative business models in new domain spaces that would be severely restricted, if not effectively prohibited, if the GAC’s proposals were implemented. Jacqueline D. Lipton, Ph.D. Baker Botts Professor of Law

“The GAC has known the strings, and the applicants, for nearly a year, and has met several times prior to Beijing. That its Communiqué now list s a hodgepodge of ill – defined and haphazardly enumerated concerns covering a wide swath of non – brand applications is in itself sufficient reason to be very skeptical of a larger role for the GAC. The Internet is too important to have decisions made by any authority other than that of broad consensus supported by empirical evidence.” Antony Van Couvering

“Neustar shares many of the concerns that appear to underlie the GAC Advice. At the same time, use of the GAC Objection procedure to create new, one-size-fits- all, across-the-board mandatory requirements at this late date is in fundamental tension with the ICANN multi-stakeholder model in general, and its bottom-up policy development principle in particular.

 The New gTLD Process has been long and arduous. The GAC has provided input, guidance and advice throughout that process. ICANN has listened hard to GAC input, and it is reflected in the New gTLD Applicant Guidebook. It is time to move forward on that basis” Neustar

On GAC Lack of transparency of process

 “the NTAG also notes the complete lack of transparency regarding GAC deliberations and its resulting Advice. We understand that the GAC periodically needs to work in a closed session to have meaningful and frank deliberations without the scrutiny of the public. However, the GAC Advice meetings in Beijing were entirely closed, providing no transparency, ability for broader understanding, or participation. This is especially concerning because transparency is paramount in ICANN’s multi-stakeholder model and
consensus building process.”
NTAG
 
On GAC overreaching its mandate

“The board should resist attempt to undermin[e] the multistakeholder model of ICANN governance by allowing one group to make radical last-minute demands on specific issues, having been captured by abevy of special interests. While the Board is required to give due consideration to GAC advice my suggestion is that when that advice represents nothing more than an attempt to bypass ICANN’s regular governance processes on behalf of special interests, then the consideration should lead to a clearand unambiguous rejection of both the grounds and the content of this advice.”

 
In sum, while we have pro-actively included the majority of these safeguards with respect to our own applications, we find that the advice from the GAC subverts the role of the GNSO in setting policy, is inconsistent with prior GAC advice, is too vague and open-ended, and threatens the multi-stakeholder model.  Antony Van Couvering

The GAC did not advise or comment on the actual ICANN policy, but seems to have attempted to take over the process of defining and implementing new gTLD policy at an impossibly late stage of the process. It was either unaware of or disliked the results of an open,transparent, multi-stakeholder process, and now seeks to change it dramatically.Non-Commercial Stakeholders Group (NCSG)

The issue is how to manage changes in policy within the bottom-up, multi-stakeholder model. It is not the role of the GAC to make those decisions; it is through the policy development process (PDP) that such changes are made. As such, we urge the Board to carefully consider whether such safeguards deserve deeper community discussion and consideration and if so, the Board should initiate a community process to fully develop these parameters while ensuring that the new gTLD program is not delayed. NTAG

 

On how practicable the safeguards provided

“In the Beijing Communiqué, the GAC tends to rely on broad, undefined terms as criteria to impose restrictive conditions on applications for, or administration of, new gTLDs. An obvious example is the reference in Annex I to implementing new gTLDs “in a manner that is fully respectful of human rights and fundamental freedoms”. Jacqueline D. Lipton, Ph.D. Baker Botts Professor of Law
The GAC had ample time between 2005-2011 to raise these issues. The fact that  they were not raised during the very long multistakeholder process of carefully crafting a consensus on the new gTLD program approach shows that  these issues are insufficiently important to a broad range of countries to be taken seriously by the board.

The GAC Advice has created a competitive disadvantage for applicants who have, from the start, committed to responsible policies that others in their contention set now have a third chance to get right. John Berard

The mandatory adoption of new “safeguards” and “categories” would have an adverse impact on the industry, particularly for investors and innovators in the commercial sector. Non-commercial users would also be affected, as the adoption of “safeguards” and “categories” could represent prior restraint and significantly impact access and expression on the Internet. Also, we note that there is nothing particularly novel about the proposals in Annex I, as they are familiar topics and ideas to veterans of the New gTLD process. Finally, these changes represent sweeping and fundamental changes at a this very late phase of the program. We urge the ICANN Board to reject the GAC advice regarding “safeguards” and “categories.” Registrar Stakeholder Group (RrSG)

From the above comments it means that many think GAC should clearly define its succinct role within ICANN to avoid duplication of roles as well as recreating already agreed on procedures while at the sme time balancing its representation of governments

 

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