ICA Opposes This Bylaws Change and Urges its Withdrawal

[Phil Corwin <psc@xxxxxxxxxxx>]

VIRTUALAW LLC
Philip S. Corwin, Founding Principal
1155 F Street, NW  Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc@xxxxxxxxxxx<http://www.internetcommerce.org/mailto:psc@xxxxxxxxxxx>

                                                                                
                                                                                
                    September 3, 2014
By E-Mail
Internet Corporation for Assigned Names and Numbers
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536

Re: Proposed Bylaws Changes Regarding Consideration of GAC Advice

Dear ICANN:
I am writing on behalf of the members of the Internet Commerce Association 
(ICA). ICA is a not-for-profit trade association representing the domain name 
industry, including domain registrants, domain marketplaces, and direct search 
providers. Its membership is composed of domain name registrants who invest in 
domain names (DNs) and develop the associated websites, as well as the 
companies that serve them. Professional domain name registrants are a major 
source of the fees that support registrars, registries, and ICANN itself. ICA 
members own and operate approximately ten percent of all existing Internet 
domains on behalf of their own domain portfolios as well as those of thousands 
of customers.
This letter addresses the Proposed Bylaws Changes Regarding Consideration of 
GAC Advice published for public 
comment<https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en>
 on August 15, 2014.
The ICA believes that this is a very inappropriate time to consider changing 
the Bylaws in regard to rejection of GAC advice, and that this matter should be 
deferred until at least the time that the IANA transition and adoption of the 
accompanying accountability structure are completed. We further believe that 
adoption of this proposal would undermine ongoing efforts to better integrate 
the GAC within the GNSO policy process, and would also encourage GAC members 
who favor multilateral over multistakeholder processes to press for undesirable 
changes in the GAC's Operating Procedures in regard to the manner by which the 
GAC renders advice.
We therefore oppose the proposed change and urge its withdrawal.

Executive Summary

  *   The proposed Bylaws change has the potential to allow the group of 
governments comprising the GAC to lead ICANN and to transform ICANN into an 
organization indistinguishable from an IGO/INGO. This result would be directly 
contrary to a key condition set by the NTIA for the IANA transition.
  *   The proposed Bylaws change would potentially elevate GAC advice above PDP 
policy recommendations generated by the stakeholders within the GNSO, thereby 
eroding the multistakeholder model that has guided ICANN since inception. The 
GAC already enjoys preferred status compared to all other Advisory Committees.
  *   Adoption of the proposed Bylaws change would undermine ongoing efforts to 
integrate the GAC into the GNSO's processes while encouraging GAC members who 
advocate multilateral governance to press harder for undesirable changes to the 
GAC's Operating Procedures.
  *   The language of the proposed Bylaws amendment is poorly drafted and would 
create dangerous uncertainties.
  *   The proposed Bylaws amendment must also be viewed in light of the recent 
BWG-NomCom Report that recommends diminishing the influence of stakeholders in 
the selection of Board members while elevating the influence of governments.
  *   As ICANN's relationship with governments is a central issue in the 
ongoing consideration of the IANA transition and accompanying accountability 
enhancements, consideration of this proposal should be deferred until at least 
the time when those matters have been concluded.




Discussion
ICANN's principal rationale for adopting the proposed Bylaws change appears to 
be that it would merely formalize a voting threshold for the Board's rejection 
of GAC advice that has already been informally adopted by the Board. However, 
that rationale fails to consider that, once adopted, such a Bylaws change will 
be far more difficult to reverse than an informal and wholly voluntary 
operating procedure.
As discussed below, it may also incite members of the GAC who favor a 
multilateral approach over the multistakeholder model to propose and push for 
changes in the GAC's own Operating Procedures. It will also undermine the 
multistakeholder model by elevating the Bylaws standard for rejecting majority 
vote GAC advice over that required for its rejection of a majority vote GNSO 
PDP recommendations; that would potentially give the GAC a greater influence 
over ICANN policy than the stakeholders comprising the GNSO which is supposed 
to determine gTLD policy.
The ongoing and interrelated matters of the IANA transition accompanied by 
enhanced ICANN accountability measures inherently involve ICANN's relationship 
with governments. No decision should be made on any Bylaws change affecting the 
role and influence of governments within ICANN until those matters have been 
fully resolved.
Deferring any decision on this matter is particularly important given that the 
March 14, 2014 
announcement<http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions>
 by the National Telecommunications and Information Administration (NTIA) 
regarding its intent to transition the key IANA domain name functions stated:
Consistent with the clear policy expressed in bipartisan resolutions of the 
U.S. Senate and House of Representatives (S.Con.Res.50 and H.Con.Res.127), 
which affirmed the United States support for the multistakeholder model of 
Internet governance, NTIA will not accept a proposal that replaces the NTIA 
role with a government-led or an inter-governmental organization solution. 
(Emphasis added)
The NTIA's commitment to the multistakeholder model has been reemphasized 
several times since that announcement. In his July 16th 
remarks<http://www.ntia.doc.gov/speechtestimony/2014/remarks-lawrence-e-strickling-assistant-secretary-commerce-communications-and-i>
 to the IGF-USA meeting, Assistant Secretary of Commerce Lawrence Strickling 
stated that any IANA transition proposal, "must maintain the openness of the 
Internet.  To emphasize the multistakeholder nature of this approach, we have 
made it very clear that we will not accept a proposal presented to us that 
would turn oversight to a government or group of governments as an appropriate 
transition plan." (Emphasis added)
Further, in his July 22nd Keynote 
Address<http://www.ntia.doc.gov/speechtestimony/2014/keynote-address-assistant-secretary-strickling-american-enterprise-institute>
 at the American Enterprise Institute, Secretary Strickling elaborated on the 
relationship of the multistakeholder model to human rights and Internet freedom:
Now that ICANN has demonstrated its ability to perform these functions with the 
support of the community, there is no longer a need for the United States to 
designate ICANN to perform these functions and we are not obligated to maintain 
a contract when it is no longer needed...We firmly believe that our 
announcement will help prevent any government or group of governments to take 
over the domain name system...Our announcement takes that argument off the 
table, and affirms the role of the global Internet community, which is 
committed to a truly inclusive multistakeholder process for Internet governance.
Leading human rights groups agree.  In a letter to Congress earlier this year, 
the Center for Democracy and Technology, Freedom House, Human Rights Watch and 
others said that the transition "could help thwart government overreach in 
Internet governance, which would have devastating implications for human rights 
worldwide...
In that context, the idea that governments could enhance their influence within 
ICANN by changing its rules to allow for a majority vote on policy issues 
reflects a misunderstanding of the policymaking process at ICANN as well as a 
misunderstanding of the meaning of the word consensus.
The United States would strongly oppose any such move and indeed, any effort by 
governments to eliminate the requirement of consensus will simply weaken the 
role of governments within ICANN.  Ultimately, ICANN's multistakeholder process 
makes it impossible for any one group to dominate the discussions or impose its 
will.  That is the beauty of the multistakeholder process and why it has 
enabled the Internet to grow and flourish.
Unfortunately, the NTIA's announcement of the proposed IANA functions has not 
taken the subject of multilateral Internet governance off the table for many 
nations, and the proposed Bylaws change could permit the GAC to dominate ICANN 
discussions and impose its will. For example, on August 19th the government of 
Iran  proposed a revision to International Telecommunications Union(ITU) 
Resolution 102 that would alter the GAC's role from advisory to 
decision-making.[1]That proposal will be debated at the ITU's Plenipotentiary 
meeting scheduled to take place in Busan, South Korea from October 20-November 
7, 2014. Adopting the proposed Bylaws amendment would provide a large incentive 
to Iran and similarly minded nations to press forward, both within the ITU and 
the GAC, to alter the GAC's role and the procedures by which it renders advice 
to the ICANN Board.
The proposal to formally make it more difficult for ICANN's Board to reject 
government advice is at direct odds with the NTIA's opposition to governmental 
dominance of ICANN in the context of potential permanent transfer of the IANA 
functions to its control. The GAC is a "group of governments" and the proposed 
Bylaws change would make it easier for the GAC to dominate ICANN discussions 
and impose its will upon ICANN. While we take Secretary Strickling at his word 
that the U.S. would strongly oppose any effort to alter the GAC's Operating 
procedures, we cannot be certain that such opposition would be effective, 
especially once the IANA transition is completed.
Indeed, we believe that adoption of this Bylaws change will only incent the 
supporters of multilateralism within the GAC to press to change its Operating 
Principles<https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles> 
(OP) from consensus to majority vote, perhaps biding their time until after the 
IANA transition is completed. The rendering of GAC advice is currently governed 
by Article XII of the OP, which states:
            ARTICLE XII - PROVISION OF ADVICE TO THE ICANN BOARD
Principle 46
Advice from the GAC to the ICANN Board shall be communicated through the Chair.
Principle 47
The GAC works on the basis of seeking consensus among its membership. 
Consistent with United Nations 
practice[1]<https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles#_ftn1>,
 consensus is understood to mean the practice of adopting decisions by general 
agreement in the absence of any formal objection.  Where consensus is not 
possible, the Chair shall convey the full range of views expressed by members 
to the ICANN Board. (Emphasis added)
However, that current standard for rendering advice could be readily changed at 
any time by "a simple majority" vote pursuant to Article XIV of the OP:
ARTICLE XIV - REVISION
 Principle 52
The GAC may decide at any time to revise these Operating Principles or any part 
of them.
Principle 53
A Member or Members may move, at a meeting, for these Operating Principles to 
be open to revision. If so moved, the Chair shall call for the movement to be 
seconded. If so seconded, then the Chair shall call for a vote to support the 
resolution. The deciding vote may be by ballot, by the raising or cards, or by 
roll call, and shall constitute a simple majority of the Members who are 
present at the meeting at which it was moved for these Operating Principles to 
be revised. If so resolved in favour of a revision of these Operating 
Principles, then the proposal shall sit for consultation for a period of sixty 
(60) days. At the next meeting following the sixty days, the Chair shall call 
for a vote for or against the proposal. The deciding vote may be taken by 
ballot, by the raising or cards, or by roll call, and shall be a simple 
majority of the Members who are present at the meeting at which the vote takes 
place. (Emphasis added)
In addition, the language of the proposed Bylaws 
change<https://www.icann.org/en/system/files/files/proposed-revisions-gac-advice-15aug14-en.pdf>
 is poorly drafted. It reads: "A decision by the ICANN Board to not follow the 
advice of the Governmental Advisory Committee must be supported by a two-thirds 
vote of all members of the Board that are eligible to vote on the matter."
This language leaves unanswered the question of what the status of GAC advice 
would be if it was considered by the Board and a majority but not two-thirds of 
the Board voted to reject it. Would that failure to muster a two-thirds vote 
leave the advice in some permanent state of limbo, or would the Board's failure 
to reject it by a two-thirds vote create a situation where ICANN is bound to 
implement the GAC advice?
The proposed Bylaws change would also undermine the very multistakeholder 
process that the US has stated it is acting to preserve in proposing the IANA 
transition. In this regard we agree with the thrust of the arguments contained 
in the comment filed by Professor Milton 
Mueller<http://forum.icann.org/lists/comments-bylaws-amend-gac-advice-15aug14/msg00004.html>
 on this proposal, in which he states:
This bylaw change gives GAC precisely the wrong kinds of incentives. The ATRT 
recommendations (and virtually everyone else familiar with ICANN's process and 
aware of the dysfunctional relationship between GAC's shadow-policy making 
process and the real bottom up process) have been urging GAC to get more 
involved with and integrated into the policy development process. But this 
resolution pushes them in the opposite direction. It tells GAC that they don't 
have to consult or integrate their policy ideas with any other stakeholder 
groups. Their pronouncements will be given a special status regardless of how 
little make an effort to listen to and reach agreement with other groups. As 
this happens, other stakeholders will learn that the real place to influence 
policy is to lobby the GAC. The GNSO's policy development process in particular 
will atrophy.
By proposing this ill-advised change, ICANN is corroding multistakeholder 
governance at its very foundations.  If this passes, ICANN can stop presenting 
itself as an alternative to Internet governance via governmental and 
inter-governmental processes. It will have privileged governments to such a 
degree that virtually any arbitrary, untimely, ill-considered pronouncement 
that makes its way through the GAC will take on the status of a global rule for 
the Internet's DNS unless 2/3 of ICANN's generally spineless board can be 
mobilized to stop it.
What we are seeing here is, as some of us predicted, the long-term 
transformation of GAC into an intergovernmental organization with control over 
the internet. The problem is that the GAC is worse than ITU because it has none 
of the procedural safeguards and limitations on its authority (such as the 
right of a state not to ratify a treaty) that  governments have.
The GNSO is the heart of ICANN's multistakeholder community. And the GNSO has 
been working to better integrate the GAC into its policy-making process. ICA 
fully supports those ongoing GNSO efforts. But adoption of this Bylaws change 
will not only dis-incentivize the GAC from engaging with the GNSO but will 
actually encourage it to pursue its own separate and parallel policy 
development mechanism. When that occurs the GNSO volunteers who devote endless 
months to developing consensus policy positions will likely drop away from 
engagement if the GAC can simply intervene and impose its own contrary and 
politically driven views knowing that the Board needs to muster a two-thirds 
vote to reject them.
Indeed, adoption of this proposed Bylaws change would elevate the GAC above the 
GNSO in the ICANN policymaking process. Section 9 of Annex A (GNSO Policy 
Development Process) of the ICANN 
Bylaws<https://www.icann.org/resources/pages/bylaws-2012-02-25-en#AnnexA> 
states:
Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted 
by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the 
Board determines that such policy is not in the best interests of the ICANN 
community or ICANN. If the GNSO Council recommendation was approved by less 
than a GNSO Supermajority Vote, a majority vote of the Board will be sufficient 
to determine that such policy is not in the best interests of the ICANN 
community or ICANN.
As can be seen, the Bylaws require that Board rejection of GNSO PDP 
recommendations be by a two-thirds vote if the GNSO acted by a supermajority, 
but that Board rejection of a non-supermajority can be accomplished by simple 
majority vote. Yet the language of the proposed Bylaws change would require 
that a two-thirds vote be required for rejection of GAC advice, even if the GAC 
changes its OP to permit the issuance of advice by a simple majority vote. This 
would lead to the perverse result that, when the GNSO and the GAC took 
conflicting positions on a policy matter by simple majority votes, the Board 
would face a higher threshold in rejecting the GAC position than that of the 
GNSO. This would elevate the GAC above the community stakeholders within the 
GNSO and thereby erode the very foundation of the multistakeholder model 
despite the fact that the GNSO is designated as the key policy body for gTLDs 
while the GAC is supposed to hold a merely advisory role.
This result would transform ICANN into a government-led organization resembling 
an IGO/INGO, something that is completely counter to the key NTIA condition for 
the IANA transition.
Further, the remaining portion of Section 9 of Annex A sets forth a detailed 
procedure for resolving matters when the Board determines that adoption of a 
GNSO-produced PDP "is not in the best interests of the ICANN community or ICANN 
(the Corporation)". But the proposed Bylaws change neither establishes a 
standard for the Board's rejection of GAC advice nor a procedure for further 
resolving disagreements with the GAC. This reinforces the conclusion that the 
proposed Bylaws language is deficiently drafted and will likely lead to 
dangerously ambiguous situations wherein ICANN will find itself subject to 
multilateral political pressure and bound to follow GAC advice.
The Bylaws amendment is more disturbing when viewed in conjunction with the 
Board Working Group Report on Nominating Committee 
(BWG-NomCom)<https://www.icann.org/public-comments/bwg-nomcom-2014-08-21-en> 
published for public comment on August 21st. That Report, prepared by the Board 
Working Group on Nominating Committee (BWG-NomCom), proposes to shrinks the 
total number of GNSO votes from 7 to 3, increase ccNSO votes from 1 to 3, and 
increase GAC membership from 1 to 3 while according that larger GAC delegation 
a vote -- while at present  the lone GAC member of the NomCom has  non-voting 
status. Since the ccNSO consists of country code registries controlled by 
governments, the apparent end result of the proposed change would be to shrink 
the number of stakeholders representing the GNSO as well as total GNSO 
influence while expanding the influence of governments in selecting members of 
the ICANN Board. If the ccNSO and GAC are both viewed as representing 
governments, then then combined number of government-influenced votes would be 
four, one more than the three votes that  would be accorded to the GNSO. 
Coupled with the proposed Bylaws amendment, we view this as a disturbing 
pattern of the Board advocating the diminution of private sector leadership and 
the expansion of governmental power within and over ICANN. The increased 
ability of governments to nominate members to the ICANN Board would further 
diminish the likelihood of Board rejection of GAC advice.
Finally, we note that Article XI of the Bylaws already accords the GAC with 
powers beyond that of any other advisory committee (AC). Section 1j requires 
the Board to take GAC advice into account in the formulation and adoption of 
policies, and sets procedures to be followed when the Board elects, by majority 
vote, to take action that is not consistent with GAC advice. No such deference 
is provided to the advice of the Security and Stability Advisory Committee 
(SSAC), even though the technical operation of the Domain Name System (DNS) is 
ICANN's primary mission. The same applies to the Root Server System Advisory 
Committee (RSSAC), which provides advice on matters relating to the operation, 
administration, security, and integrity of the Internet's vital Root Server 
System. And no special deference is given to the advice of the At-Large 
Advisory Committee (ALAC) even though it represents global individual Internet 
users. We understand that nation-states play a special role and that there are 
political considerations underlying the special deference already accorded to 
GAC views in the Bylaws. But, given that the GAC already enjoys a position 
elevated above all other ACs there is no reason to further enhance that 
difference, especially given the potential negative repercussions of the 
proposed Bylaws change.

Conclusion
The adoption of the poorly drafted proposed Bylaws change in combination with a 
subsequent GAC vote to alter its OP to permit the issuance of advice in the 
absence of "consensus" would result in governments having vastly more say over 
ICANN policy -- without ICANN formally becoming an IGO/INGO or governments 
having seats on the Board. That would certainly be at odds with the spirit if 
not the precise letter of the relevant NTIA condition for the IANA transition. 
It would also potentially elevate the GAC's influence above that of the GNSO 
and undermine ongoing efforts to integrate the GAC into the GNSO's policy 
process.
For all the reasons stated above ICA strongly opposes adoption of this Bylaws 
change. We urge its withdrawal and deferral of any further consideration until 
the IANA transition and the adoption of enhanced ICANN accountability measures 
are completed.
We hope these comments are helpful to ICANN's further consideration of this 
critically important matter.
Sincerely,

Philip S. Corwin
Counsel, Internet Commerce Association


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey


________________________________

[1] "Iran Urges ITU Plenipotentiary Members To Grant Decision-Making Power to 
GAC"; Bloomberg BNA Electronic Commerce & Law Report; August 27, 2014