Adding my view as another who was there.

On 6 Mar 2011, at 05:39, William Drake wrote:

> Hi Milton
> 
> On Mar 5, 2011, at 10:43 PM, Milton L Mueller wrote:
> 
>> Bill,
>> This is a great report, and it’s the kind of analysis we desperately need as a group to determine our positions and strategy going forward. Thanks for doing it.
> 
> Sure. Was rushing and when I actually read after sending saw a couple of typos that change meanings but whatever, the main drift is clear.
>>  
>> Let me respond to a few of the points you made. You have provided a very balanced account but on a few occasions I think your striving for balance is giving false credence to rationalizations that governments (especially the US Govt) have made up to justify their actions.
> 
> I was mostly just reporting what GACsters said rather than critiquing or endorsing it, but your elaboration below does surface some differences of view, which I suppose at some level reflect our respective left lib vs libertarian politics, or maybe more precisely somewhat different views of the international system and states. Always a fun debate to have...
>>  
>> First, there was a lot of mutual frustration about the process leading up to the meeting.  Many in “the community” were miffed that the GAC had waited to formally put down its markers until to the 11th hour, when the launch of new gTLDs was thought to finally be imminent.  Conversely, the GAC maintained that it had in fact been providing “advice” on its concerns since at least the March 2007 release of its new gTLD Principles, but that ICANN had simply chosen not to take this seriously.

This is one of the GAC claims that I have problems with.  At the beginning of the new gTLD process GAC had a liaison on the GNSO who actually participated and I believe attended some of the discussions meetings.  I also know that they were frequently invited and that I made a report to the GAC at every meeting of what was going on and the degree to which we had taken their principles into account.

The issue is, they did not, and still for the most part do not, want to take part in the nitty gritty work of building the policies.  They look down on the people participating in the WGs and SOs and feel that the Board is the only one worthy of their attention.

If they are going to ignore all invitations to work together during the process, they have, in my view no right to complain about not being included.


>> [Milton L Mueller]
>>  
>> I think the GAC response here is absurd. As someone who participated in the early stages of new gTLD policy formulation during and shortly after the March 2007 “Principles” I know that the GAC Principles massively impacted the policy formation process. The whole attempt to come up with MAPO, for example, had no support in the GNSO but was seen by major business constituencies and staff as a necessary to appease GAC. Arguments against MAPO made by NCUC members were ignored by staff because they thought they had their marching orders from GAC.
> 
> Right, but is the demand for MAPO just offensive power grabbing because that's what states do, or is it also/more defensive, at least on the part of democracies?  It's pretty easy to imagine that bureaucrats and their ministries would be keen to avoid situations where vocal domestic constituencies, political higher ups, and the media start jumping up and down about how could you let xyz tld go forward?  Moreover, there are international political dimensions given widespread views of ICANN being an out of control US/Northern corporate entity that needs at a minimum intergovernmental oversight.  Not saying I agree or favor MAPO, just that there's a mix of motivations, and one suspects it would have been difficult for ICANN to just refuse to consider any sort of mechanism to deal with them.
> 
>> Furthermore, the MAPO regulations were in place almost two years before Suzanne Sene suddenly objected to them at the June Brussels meeting. Same argument applies to the Commerce Departments sudden call for “research” to support the economic need for new gTLDs. In effect, the DoC was asking us to go back to square one. It is obvious that these pressures came from trademark lobbying and nothing else.

I would need to research this, but I think Suzanne might even have been at the meeting in MdR where Paul Twomey first introduced MAPO as the solution to the problem of how to deal with GAC issues.

> 
> Undoubtedly that lobbying is a key driver, it's a short cab ride from K St. to NTIA and the hill.  But wanting to slow things down seems overdetermined to me.

The IPC issue is a problem in itself.  They first compromised with the GNSO council in creating the policy and even voted for it (only the NCUC didn't completely vote for the new gTLD program in the GNSO).  Then they pushed the IRT and got the STI, but in the end they compromised and agreed on STI.  But that was still not enough and they wanted more, so now they 'stomp'  out of meetings and lobby any government willing to listen.  Every compromise on IP issues is just the platform from which the IP lobby starts its next fight.  I believe in compromise in a multistakeholder process, but only when the other party honors the compromise.  And I do not feel that has happened on IP issues in the new gTLD process.

> 
>>  
>> The “big” issue here is what constitutes a “public policy issue” and “public policy advice”? Over time, GAC has gravitated more and more toward an operational role, i.e., giving itself direct control over outcomes, rather than providing advice on general policies that should be adopted. The veto – or even the watered down version of giving “advice” on individual applications through a Communique – illustrates the difference. When you look at individual applications and ask to be able to object to them “for any reason” you are not providing “policy advice”: you are asking to be the one who makes the final decisions about what TLDs can and cannot exist.
> 
> Yup

On this I think I disagree.  The GAC has by-laws license to question any decision that will be made by the Board.  It was our insistence in REC6 that the Board itself had to respond to every controversial string objection.  In my view it has nothing to do with what is or isn't a public policy decision (which I think at best has a very fuzzy distinction and depends on your political philosophy - governments see anything they talk about as a public policy issue other wise they would not be talking about it) but rather with the role of Advisory Committees in ICANN.  They can advise on anything.  And while ALAC can be ignored with impunity, the by-laws give the GAC the right to be heard, responded to and engaged in discussion.

I think that this is a clever solution to the veto problem as it relies on existing mechanisms.

The first 45 days will allow for anyone to comment on anything.  GAC comments will be called Early Warning and will come in the form of advice.    There will be no obligation for the board to act on it, as I understand, until the end of the application process, but it will serve to warn anyone who did not know better already that they have a tough hill to climb.  Warnings are good things and someone who heeds the warning gets a partial refund instead of dumping a lot of money into a tough cause.  Those who want the fight will know they have to get ready.  I heard Stuart Lawley of .xxx say he wished he had gotten an early warning.

One good thing the Board seems to be requiring in this Advice is that they want to know whether there is a consensus or not and the names of those countries who made and supported the objection.  I think we should support the Board in this demand. 

Note a consensus is something that I think the GAC can only get when they are actually sitting in session with a quorum (whatever that means for the GAC).  Does that mean they will have to physically meet during the 45 days period to decide on such advice?  Perhaps we need to get ready for that meeting - in the room and in the streets.


> 
>>  
>> Irrespective of whether you think one or the other side is right about that, clearly there hasn’t been enough good communication and coordination and this disconnect shouldn’t have been allowed to fester.
>> [Milton L Mueller]
>>  
>> As I said, the view that there wasn’t enough communication is a face-saving, comforting way to construct things. But in my opinion it’s false. It would be more accurate to say: as long as the Board doesn’t do exactly what the GAC tells it to do, and let the GAC command it any time it wants, we are doing to be hearing about some kind of “disconnect”


Yeah, but I do not believe the Board, at least not this Board is going to capitulate on all the demands.  But I do believe they are going to give them due consideration and due diligence as required by the by-laws.

> 
> You think there was enough communication, that GAC and "the community" had fully talked this through and both sides understood each other's concerns and how these could clash etc?  I have to say that while I've been on the Council I've seen very little communication with GAC besides the one hour theatre sessions held at ICANN meetings, and basically no internal discussion of the roles and interests of governments.
> 
>>  
>> Second, each side seemed to feel that the other didn’t understand its constraints and procedures.  On the one hand, board members would note that many parties had investors waiting impatiently and were facing financial challenges, that the community had spent years working on the Applicant Guidebook and forging difficult consensuses, and that people would find it difficult to accept this or that advice that ran counter to the AG or introduced additional delays.  On the other hand, GAC members would argue that it’s just not possible for them to work in a different and quicker manner since they have various work responsibilities and participating in GAC is just one of these; and that they have to coordinate at each step of the way both internally with their relevant ministries and other actors, and then externally with each other. 
>> [Milton L Mueller]
>>  
>> This difference between the two procedures does indeed exist. And it’s important. But what boggles my mind is that no one on the government side seems to remember that this slow, bureaucratic 200-sided multilateral process is PRECISELY WHY WE PUT DNS IN THE HANDS OF ICANN TO BEGIN WITH! We wanted to get DNS out of a situation in which 200 different jurisdictions would try to impose their own law and spend ages trying to work out their differences.
> 
> Ok but the "we" here wasn't most of "them."  
>>  
>> Third and relatedly, the two sides were differently enabled to engage in bargaining.  The ICANN model involves putting the famous “good people” in board slots and giving them the latitude to make judgments, engage in on-site problem solving via break-out groups and other techniques, adapt their positions to forge compromises, etc. The government folks insisted they can’t work that way, they come with fixed consensus positions and then need to take each new bit from the other side back to their capitals and into the GAC for re-coordination. As such, they couldn’t give definitive statements of agreement to board counterproposals, which left some board members palpably frustrated.
>> [Milton L Mueller]
>>  
>> Same comment as above
>>  
>> Fourth, there were clearly very different expectations about what happens next.  The Board had announced in January that it expected to hold an official “bylaws consultation” in SF at which it presumably could announce its final conclusions on what GAC advice it was or wasn’t accepting with an eye to launching the round thereafter.  Indeed, some members argued that this session meant that they were already in a bylaws consultation.  Key GAC members said they regarded all this as premature and a bit offensive, i.e. as an effort to push toward closure and a launch without fully hearing the GAC out and taking its views on board.  Accordingly, they announced they didn’t want SF to be labeled a formal bylaws consultation.  This issue led to a lot of heated exchanges on the last morning, so much so that various speakers felt moved to say please let’s pull back from the brink and not end in acrimony, etc. 
>> [Milton L Mueller]
>>  
>> Again, this to my mind constitutes a clear abuse of process by the GAC. The GAC has no defined process to follow and can just keep all of us hanging. Let’s not be naïve about the possibilities for strategic misuse of this latitude.  
> 
> Sure that' possible.  But for the board to announce a timetable it must have known GAC would say it can't meet was also a strategic choice.  The push back is no surprise. 

Actually I bet the Board thinks it was sandbagged.

>>  
>> Maybe as a side note I should say that Avri and I had a long lunch talk with the lead USG person and talked about this in some detail.  She insisted that the US doc was being misread out of context, in that is was geared toward internal GAC discussions and what their position should be, rather than some sort of new externally-oriented pronouncement that changes GAC’s bylaws role from advise to command. 
>> [Milton L Mueller]
>>  
>> You’ve been played.


I tend to believe what people say to me until they have given me a reason to no longer do so.
These people have not given me a reason to disbelieve them.

> 
> Give us a little credit.  I was just saying what she argued, that not Avri and I bought it.
> 
>> As I’ve said in another context, the DoC is making beeping noises as it backs its way out of an uncomfortable position. There was nothing “misread” or misinterpreted about the USG’s position; there was, however, something deeply embarrassing about it when exposed to the light, and when we made sufficient noise they were forced to back off. I know that Fiona is very good at such retroactive justifications, but I am not buying it. Consider the following facts:
>> -   That document was circulated US Commerce Dept itself to “selected” people, one of whom was so shocked by it they sent it to me. Obviosuly they are not interested in the US public’s viewpoint, only certain people they think predisposed to agree with them.
>> -   When they were first challenged publicly on it and approached by reporters, they did NOT say anything about it being geared toward internal discussions – they defended the position therein. This is documented.
>> -   Even if it was only for internal discussion, it was clearly marked as the “USG position for the GAC scorecard.”  In other words, it was the position that the USG was taking. If they modified it because of our political pressure, what would they have done if we had not generated that pressure?


The point I made in 'that other context' was that this was still an internal document that it was not yet a proposal to the GAC.  As I also said in that other context was that, in retrospect and knowing what i know now, I think we handled it incorrectly.  I am glad it was stopped, but it think at this point that it could have been handled better.  Spilt milk and all that.

>>  
>> That is, “If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application,” meant that the GAC’s advise would be to reject, not that the Board would be bound to reject.  At the same time, there was a bit of a waffle here, since she also felt it’d be exceptionally ill-advised to go forward over GAC objections, and Larry Stickling’s much quoted Flatirons speech in February stated that the Board “would have little choice but to reject the application.”
>> [Milton L Mueller]
>>  
>> This is they key! In other words, they really DO want the GAC to have a veto. And note that there is no “policy” here – no general set of rules or guidelines that tells us what is allowed and what is not, there is no reliance on international law, there is just “for any reason.” So Fiona’s whining about being misunderstood is B.S.


Everyone who gives advice wants it listened to.  But the GAC letter also acknowledges that the Board has no obligation to do what the advice says, only that they need to give it full and proper consideration.  That is what I believe is the key in the process.

> 
> You don't see any difference between saying "the GAC's position would be that it should be vetoed, and we think it'd be politically unwise to proceed over that objection," vs. "ICANN is formally obliged to agree"?  I agree with you that it was a horrid proposal and that they hoped the board would feel pressured to oblige, but it didn't entail a bylaws change.
>>  
>> The larger point she really emphasized was, as suspected, about ICANN’s preservation in the face of calls in the UN for intergovernmentalism.  As we know, Brazil, India, South Africa and China have called for a new intergovernmental body with global Internet public policy responsibilities, and there’s fear that this and other proposals could morph into pressures for oversight or control of ICANN. 
>> [Milton L Mueller]
>>  
>> Oh, this takes the cake! The old “UN will take over the Internet” bogeyman. I know you are reporting on what Fiona said, and doing it well, but let’s at least make some common-sensical emendations. Would someone please explain to me why we should want to prevent the UN or any other intergovernmental institution to “take over” ICANN by giving all-encompassing power over it to an…intergovernmental advisory council. At least the UN agencies have treaties and laws and the treaties have to be ratified by national legislatures and follow due process. If we have to choose between GAC and an IGO, I’ll go with a duly constituted, treaty-based IGO.
> 
> Really?  Wouldn't that have a greater likelihood of institutionalizing all the kinds of dynamics you despise than say an improved, more serious, rule bound GAC?
> 
>>  
>> The USG appears to be getting seriously worried that if more governments lock into a view that they cannot get their way with ICANN on matters they consider to be fundamental national interests, and/or that ICANN’s is irredeemably accountable to the broader international community, they’ll become more receptive to considering intergovernmental alternatives.  One can debate whether that concern justifies the kinds of language used in the US input doc, and indeed we should at the NCUC event in San Francisco.  But I do think they’re getting worried, as Stickling’s speech underscores.
>> [Milton L Mueller]
>>  
>> The ONLY threat of an Intergovernmental takeover comes from the GAC, and from nowhere else. ITU has been repeatedly rebuffed, and the last Plenipot actually recognized ICANN for the first time; WSIS failed when ICANN was much weaker and more controversial and less attuned to international concerns.
> 
> ITU may not be the only game in town, and who knows what the intergovernmental dialogue will look like if the launching of potentially hundreds of new gTLDs leads to backlashes etc.  I agree with you at present, but this is a fluid and unpredictable environment, so it's not necessarily a strict either/or, either the US is just using "the other" or it has real concerns about the known unknowns and believes ICANN leadership is ignoring this at its peril.  

I think the dynamics of the ICANN oversight are far more complex that this issue indicates, but I was concerned at how often governments resorted to the refrain of the type "If ICANN doesn't do the right thing, I am going to take my marbles and ..."

But, I am not too concerned about government taking responsibility for the DNS, the one and one way to translate LDS and IDN names into numerical names (aka IP 'addresses) away, though I am concerned about the larger IG context. I, for one, still believe that the ICANN experiment has to succeed ad that success means finding an accommodation with the GAC (yes without them dictating what happens at the table).  And that requires a careful balancing act by the Board  and especially by Peter.  I think they are doing well and we should find ways to support them and give them the arguments they need where we can.



One issue that was not mentioned in your report is the absurd untruth that the GAC is using as the basis of its argument - that countries blocking a TLD constitutes a threat to the stability and security of the DNS (As if the Arab states had brought down the Internet by blocking Israel's .il). I.e We must prevent those uncomfortable TLDs from getting into the root because for individual countries to block them would be a technical threat to the Internet.  This is their belated response to the 'keep the core neutral' idea.  And is false and needs to be debunked at every possible level.

The point behind this argument, as close as I can tell, is that if you let a 'bad word' into the root, lets say .right2chose
and then countries block it, you will see two possible effects.

1. people in the country might protest this curtailment of the freedoms
2. they might find a way to work around it, leading, horror of horrors, to an alternate root.

The argument explains that if you just turn them down and they don't get into the root, they will go away with tails tucked and lick their financial wounds.  But if they, especially if there are a lot of them, get into the one-true-root and still can't reach the world, then they will react and form alternate roots that work around their blockage, and that these might actually take root.  And since it is a matter of faith that alternate roots means the destruction of the Internet as we know it, it is this, that is a stability and security threat to the Internet.  QED

I think that this bit of sophism is not only cynical, I think it is absurd.  And it is something I am personally committed to fighting against.  Perhaps it is the philosopher in me, but I feel that if we can undercut this basic premise of their argument and once again make the arguments that were made in the 'keep the core neutral' campaign we will have gone some ways to undercutting the GAC argument against the TLDs that provoke their sovereign sensitivities.  That is, if you don't like .right2chose in your country, then block it!


a.