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Comments on Proposed Bylaws Changes Regarding Consideration of GAC Advice

  • To: "comments-bylaws-amend-gac-advice-15aug14@xxxxxxxxx" <comments-bylaws-amend-gac-advice-15aug14@xxxxxxxxx>
  • Subject: Comments on Proposed Bylaws Changes Regarding Consideration of GAC Advice
  • From: "Schaefer, Brett" <Brett.Schaefer@xxxxxxxxxxxx>
  • Date: Tue, 9 Sep 2014 20:40:24 +0000

Comments on Proposed Bylaws Changes Regarding Consideration of GAC Advice
Paul Rosenzweig, Brett D. Schaefer, and James L. Gattuso
We write in response to the request for comments to the Proposed Bylaws Changes 
Regarding Consideration of Governmental Advisory Committee (GAC) 
 that would institutionalize an obligation for the Internet Corporation for 
Assigned Names and Numbers (ICANN) Board of Directors to adopt advice from the 
GAC unless two-thirds of the Board votes to disapprove the advice. The 
underlying principle guiding Board consideration of this proposal should be 
opposition to any change that would erode the independence of ICANN and empower 
governments within the decision-making process. In our judgment, the proposed 
bylaw amendment is fundamentally misconceived in that it (a) wrongly equates 
GAC advice to that of the Generic Names Supporting Organization (GNSO); (b) 
risks GAC control of Board functionality; and (c) is inconsistent with the 
requirements that the U.S. government has placed on the Internet Assigned 
Numbers Authority (IANA) transition. The bylaw proposal should be rejected.
Current Status and the Proposal
Under current arrangements, national governments use the GAC as a forum to 
discuss concerns about ICANN policy and issue advisory recommendations and 
advice to the ICANN Board. The ICANN 
bylaws<https://www.icann.org/resources/pages/bylaws-2012-02-25-en> empower the 
GAC to “put issues to the Board directly, either by way of comment or prior 
advice, or by way of specifically recommending action or new policy development 
or revision to existing policies.” GAC advice can take many forms, including by 
way of a letter from the GAC Chair on behalf of the GAC, communiques or 
submissions endorsed by the GAC, or formal documents.
The Board takes GAC advice seriously and has rarely (if ever) rejected it 
unless a substantial majority of the Board is in opposition. Officially, 
however, GAC advice is not privileged aside from the fact that the Board must 
take it into account and may reject it by majority vote. Specifically, as 
stated in the bylaws, if the Board “determines to take an action that is not 
consistent with the Governmental Advisory Committee advice, it shall so inform 
the Committee and state the reasons why it decided not to follow that advice. 
The Governmental Advisory Committee and the ICANN Board will then try, in good 
faith and in a timely and efficient manner, to find a mutually acceptable 
solution.” If a compromise cannot be reached, “the ICANN Board will state in 
its final decision the reasons why the Governmental Advisory Committee advice 
was not followed.”
The proposed amendment to the ICANN bylaws would enhance the GAC’s formal 
authority. Under the proposed bylaw amendment, the threshold for the Board to 
reject advice from the GAC would be increased from a simple majority to 
two-thirds of the Board’s voting members. Thus, if the bylaws are amended, 
binding internal ICANN rules would oblige the Board to accept the 
recommendation of national governments unless a supermajority votes to reject 
that advice.
The Proposal Is Flawed
In our judgment, the proposed bylaw amendment is fundamentally flawed for three 
Wrongful Equation of GAC Advice to GNSO Recommendations: One argument for the 
bylaw change is that the ICANN bylaws currently give favored status to 
supermajority recommendations from the GNSO Council. The bylaws state that a 
policy recommendation from the GNSO Council, 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.”
The GAC asserts that its advice should be no less privileged than that of the 
GNSOs, but that assertion rests on a false equivalence. The advice of the GNSO 
Council is the product of bottom-up development from multiple stakeholders and 
therefore carries the presumption of legitimacy that comes from the vetting 
that attends that process. By contrast, GAC advice is the product of 
hierarchical top-down direction from sovereigns, a process that is inconsistent 
with ICANN’s commitment to a multi-stakeholder model.
To be sure, governments are also constituents of ICANN, and if they were to 
participate in the development of policy through the GNSO structure, their 
input would have the imprimatur of the multi-stakeholder process. But standing 
alone, outside the process, GAC advice does not have such an imprimatur of 
legitimacy. To the contrary, it is, in effect, an effort to have a last-word 
veto and is fundamentally counter to ICANN’s commitment to a multi-stakeholder 
decision-making process.
Risk of GAC Control of Board Functionality: By raising the threshold for 
rejecting GAC advice, the proposed bylaw change inappropriately enhances the 
authority of the GAC vis-à-vis the Board. Since the establishment of ICANN, the 
U.S. federal government has expressed its intent to make governance of the 
Domain Name System (DNS) fully private. Government advice is critically 
important, as is the advice of other constituents, but the power of governments 
is such that care must be taken that they not swamp input from other 
Any proposed bylaw change ought to pass a “stress test” for unlikely outcomes 
that threaten to disproportionately elevate the authority of governments within 
ICANN. The bylaw proposal fails that test. In particular, the bylaw proposal is 
premised on the unjustified assumption that the current GAC internal procedure 
requiring it to operate by consensus will continue. Currently, the GAC can 
provide advice and recommendations only if there is “consensus” among 
governments, which is defined under Article XII of the GAC Operating 
Principles<https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles> as 
“the practice of adopting decisions by general agreement in the absence of any 
formal objection.” If consensus is not possible but the GAC still wishes to 
convey advice, the GAC Chair “shall convey the full range of views expressed by 
members to the ICANN Board.”
Were the consensus requirement to continue to be observed, it would act as a 
check on advice from the GAC that was not in the interest of the broader 
community. However, under Article XIV of the GAC Operating 
the GAC can revise its Operating Principles at any time by a simple majority of 
the GAC members present at the meeting at which the vote takes place. Some 
governments have already proposed that the consensus requirement be changed so 
that GAC decisions can be adopted by majority vote. It is possible, perhaps 
likely, that in the near future a majority of countries will modify the current 
operating procedures and then, under the new procedures, push through advice 
from the GAC that is contrary to the broader interests of the community. In 
such circumstances, increasing the threshold for the Board to reject GAC advice 
would prove to have been ill-advised. Moreover, the prospect of securing a 
blocking minority of Board members to support their efforts would serve to 
further politicize the process for selecting the ICANN Board of Directors.
Inconsistency with the IANA Transition: ICANN and the multi-stakeholder 
community are currently grappling with a transition that will lead over the 
next year or so to the devolution of the IANA contract from the U.S. government 
to ICANN. As a condition for that transition, the National Telecommunications 
and Information Administration (NTIA) has set forth a number of principles, the 
clearest of which is its requirement that ICANN be insulated from government 
capture. As NTIA put it, the U.S. will “not accept a proposal that replaces the 
NTIA role with a government-led or an inter-governmental organization 
solution.” The reason for NTIA guidance on this issue is clear: Enhancing the 
power of governments, many of which are hostile to an open and free Internet, 
within ICANN poses a threat to the multi-stakeholder model, the security and 
stability of the DNS, the global customers and partners of the IANA services, 
and the openness of the Internet.
The bylaw proposal is at least in tension with, and arguably in conflict with, 
this requirement. Instead of moving away from governmental control as the U.S. 
government has requested, the proposed bylaw change would enhance the authority 
of governments within ICANN by making it more difficult for the Board to reject 
GAC advice.
Proposed Solution
The bylaw proposal is flawed and should not be adopted. Instead, the Board 
should (1) endorse the original U.S. federal government intent to make 
governance of the DNS private, (2) reaffirm its commitment to the bottom-up 
multi-stakeholder process, (3) reiterate that the GAC remains an advisory body, 
and (4) express its intention to maintain the formal authority under the bylaws 
to reject GAC advice on a majority vote.
Paul Rosenzweig is a Visiting Fellow in the Douglas and Sarah Allison Center 
for Foreign and National Security Policy, of the Kathryn and Shelby Cullom 
Davis Institute for National Security and Foreign Policy, at The Heritage 
Foundation. Brett D. Schaefer is Jay Kingham Fellow in International Regulatory 
Affairs in the Margaret Thatcher Center for Freedom of the Davis Institute. 
James L. Gattuso is Senior Research Fellow for Regulatory Policy in the Thomas 
A. Roe Institute for Economic Policy Studies, of the Institute for Economic 
Freedom and Opportunity, at The Heritage Foundation.

Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and 
Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002

Attachment: Comments on GAC Bylaw Proposal 9-9-14 fin.docx
Description: Comments on GAC Bylaw Proposal 9-9-14 fin.docx

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