U.S. “remote participants” who rose long before dawn to monitor the ICANN Board/GAC discussions awoke to a bad dream as the talks reached an impasse on nearly all issues, including how to move forward. By the close of the morning session – after Board member Cherine Chalaby remarked that “the energy level has dropped” within the meeting room — the participants agreed to discard the entire afternoon agenda and retreat separately until 4 PM Brussels time. Absent some last-minute agreements, official participants may leave the EU capital with no substantive resolution of any issue and with a widened psychological gap between the Board and GAC.
Prior to the start of the four hour lunch break, some dialogue did occur on the rights protection issues that are the foremost concern of ICA members and registrants generally. But that discussion only illustrated that, while the conversation is in English, the two sides often seem to be speaking in different languages. UK representative Mark Carvell, the GAC lead on the issue, kicked off the round by informing the Board that the GAC was not in a position to provide coordinated consensus responses to the Board’s questions regarding the details of its rights protection “scorecard”, adding that these were “complex and intricate” issues. Board member Rita Rodin Johnston, the Board’s lead on the matter, responded that they looked forward to the response once GAC members consulted, and offered to set up a post-Brussels call. GAC Chair Heather Dryden intervened, stating that they would want to get their “IP experts” on such a call – raising the disquieting possibility that the big brand IP attorneys who persuaded the GAC to propose massive rewrites of Universal Rapid Suspension (URS) and other matters may join a call that the broader ICANN community is not privy to. When ICANN Board Chairman inquired whether a call could be set up for the next day, Mr. Carvell responded that there would be “problems facilitating that”. The German representative then stated that the GAC was reluctant to provide any written responses — and first wanted to know to what extent the Board was willing to go along with its scorecard positions.
At that point, ICANN Board Chairman Peter Dengate Thrush set some context. He noted that there were presently one dozen issues on which the Board and GAC were at odds and that the objective for the upcoming San Francisco consultation was to reduce the number to zero. But he also observed that many issues were linked and needed to be resolved simultaneously. Then Ms. Rodin chimed in, observing that while the GAC had proposed to change the URS evidentiary standard from “clear and convincing” to “preponderance of the evidence” it had provided no rationale for this marked departure from all prior versions of URS, and that the Board needed to understand the reasoning behind the proposal before it could formulate a full response. [Note: The URS has always carried a higher evidentiary burden than the UDRP since first being formulated by the IRT in early 2009 because it was supposed to be solely for “slam dunk” infringement cases and a supplement to, and not a replacement for, the UDRP. As now proposed by the GAC it could become a $200, 500 word complaint functional alternative to the UDRP, with the same burden of proof and with the availability of domain transfer and not just suspension.]
Mr. Carvell responded by noting that there were many elements on which the Board had posed no questions, and asked whether the GAC could regard that as a positive sign that the Board was ready to agree. No, that would be “too facile”, answered Chairman Thrush; just because we haven’t asked questions doesn’t mean we have a consensus view – and that includes the rights protection rules.
The discussion then moved on to other issues, with equally inconclusive results. As the lunch hour approached, Chairman Thrush inquired whether anything further could be usefully discussed on rights protections until the GAC responded to the Board’s questions – and received silence in response.
Then both sides agreed that it would be best to take a long time-out and return late in the afternoon, effectively discarding the entire substantive after-lunch agenda.
While we await whatever announcements emerge from that late day reconvening, we can only observe that what occurred today indicates that resolution of those dozen outstanding issues in the next sixteen days (with the formal Board/GAC consultation scheduled for March 17th, during ICANN’s San Francisco meeting) appears to be a very ambitious goal.
While we are pleased that the Board has not capitulated to the GAC scorecard on critical trademark protection matters, and is asking tough questions that the GAC seems unprepared to answer, we are also concerned that further breakdown in Board/GAC relations could raise serious questions about ICANN’s future. The issue of the role of the GAC within ICANN has become the overarching issue over and above the dozen issues on the negotiating table.
In that regard, today’s Washington Post contains a long article titled, “Obama administration joins critics of U.S. nonprofit group that oversees Internet”. It begins with this observation:
The California nonprofit organization that operates the Internet’s levers has always been a target for such global heavies as Russia and China that prefer the United Nations to be in charge of the Web. But these days, the Internet Corporation for Assigned Names and Numbers is fending off attacks from a seemingly unlikely source: the Obama administration.
Concerned about the growing movement to cede oversight to the U.N., the U.S. government, which helped create ICANN in 1998, has been reprimanding the nonprofit group to give foreign nations more say over the Web’s operations.
The Administration’s view is that ICANN must concede substantial ground to the GAC to obtain their “buy in” and deflate efforts to transfer Internet governance to the International Telecommunications Union or another politicized, UN-affiliated entity in which the private sector and civil society have mere observer status. However, if that “buy in” is obtained by setting the precedent that the GAC can veto and rewrite policy positions set through ICANN’s multi-stakeholder process, will the end result be establishing the GAC as first among equals, a veritable UN within ICANN?