During the GNSO Council meeting in Vancouver, I made the remark that “Everybody at this table is a stakeholder. We all have an interest in this issue.” Councillors were talking about conflicts of interest and abstaining, and in my opinion, generally missing the point about what ICANN and the GNSO is all about.

Before I get too deep into this post, I should clarify what I mean when I use the term “conflict of interest”. A conflict of interest is when someone’s private interests get in the way of their performance of a public duty – that their private interests will benefit from the decisions they make in the course of fulfilling their public duty. Private, in this sense, can be taken to mean “personal or professional” and not necessarily disclosed.

Wikipedia has this to say:

A conflict of interest is a situation in which someone in a position of trust, such as a lawyer, a politician, or an executive or director of a corporation, has competing professional or personal interests. Such competing interests can make it difficult to fulfill his or her duties impartially. Even if there is no evidence of improper actions, a conflict of interest can create an appearance of impropriety that can undermine confidence in the ability of that person to act properly.

– courtesy of Wikipedia

ICANN’s Generic Names Supporting Organization exists mostly to provide ICANN’s Board of Directors with substantive recommendations regarding policy related to Generic Top-Level Domain Names. For instance, the question of whether or not to create new top-level domain names like .web or .rader is an area of policy currently being discussed by the GNSO. The GNSO is made up of constituencies¹ which are theoretically intended to represent the interests of significant stakeholders.

By definition, the GNSO is a collective of special interest groups – each with their own unique perspective, agenda and special areas of interest. The ISPs are worried about networking and connectivity issues, the Non-commercial Users are worried about free speech and privacy issues and the registration providers are worried about the business of selling domain names and managing DNS infrastructure. All of these special interest groups have an explicit role in making policy recommendations to the board and each is directly affected when those recommendations become binding policy.

“But wait…” I hear you saying. “Isn’t that a conflict of interest? How can someone help develop policies that they might directly benefit from?”

That’s the beauty of it. Everyone in the GNSO has a conflict of interest, but each of those interests are different. These differences have the tendency of balancing each other out. For instance, the business users certainly wouldn’t let the registration providers (registries and registrars) pass along a policy recommendation that charged Fortune 500 customers $1,000,000 per year for their domain registrations.

The only time this gets sticky is when ICANN’s Board of Directors tries to listen specifically to individual participants instead of the constituencies and the GNSO itself. We recently heard from ICANN Board member that it was difficult to listen to the GNSO because people’s interests aren’t always apparent. So instead of asking questions about those interests, this board member shut out all input on the subject from anyone affiliated with the GNSO. He based his decisions on what he thought ought to happen based on his perception of the view of the issues as summarized by ICANN’s staff. And ignored the more balanced view of the GNSO in the process. ICANN wasn’t designed in a way that allows direct input to the Board to happen in a fair, unbiased and useful manner. Anything received by the Board from individual participants is an end-run around the process and should be treated as such. I don’t know why the Board continues to invite it – its broken and diminishes the value of the standard processes we’ve all agreed to.

But back to conflicts of interest.

I’m hearing now that the GNSO needs to try and be more neutral in the way it develops its policy recommendations. Neutral to the point of reducing the participation of affected parties in certain circumstances because of how this might appear to the outside world. In a normal organization lacking the structural balance of the GNSO, this might be a reasonable approach. In this case, it further undermines the basic deal that lead to ICANN’s creation.

The basic deal was that the private sector would assume management of the DNS from the United States Government. ICANN was specifically created by the private sector to provide the framework necessary to make this happen. Unfortunately, it appears that Paul Twomey and Vint Cerf have a much different interpretation of the terms of the basic deal. The Twomey/Cerf ICANN framework looks a lot more like a miniature ITU – which has very little to do with the private-sector, and everything to do with Big G governments.

“But wait…” You’re saying.

(That’s the second time! How do I know you’re saying that? You say it a lot.)

“But wait…aren’t governments used to managing things like those managed by ICANN? Doesn’t every government have a ton of experience with regulation and managing economic policy and all the other things that ICANN keeps getting accused of doing badly?”

ICANN isn’t a regulator, it doesn’t regulate and it certainly doesn’t manage economic policy. The people that say that are either misinformed or misinforming. Usually both.

Sometimes ICANN looks like a regulator because it places limits on certain practices and makes other practices mandatory. But think back, where do these limitations and mandatory measures come from? A lot of times, they come from the GNSO. And who is the GNSO? Say it with me – The GNSO are the users and suppliers of the system. Remember – the very same people that help make the policy are often affected by the policy.

ICANN’s GNSO does not need to avoid conflicts of interest in its proceedings, rather, it needs to manage them. It needs to ensure that the utmost transparency exists around the affiliations and interests of its members and ensure that the record is clear regarding the terms of each contribution made to the development of each policy .The GNSO needs to increase the rigor with which it documents the policy development process to ensure that substantive conflicts are noted, and to assist each constituency in ensuring its members are making the appropriate disclosures.  The GNSO must avoid calls to implement a regime of safe neutrality. The premise of which are entirely inconsistent with ICANN’s original mandate.  Instead, the GNSO needs to implement conflict of interest management policy that deals head on with the challenges created by the involvement of the private sector so that the private sector can bring its expertise to bear in dealing with the challenges that lay ahead of the ICANN community.

Interesting conflict, no?

¹ The Internet Service Provider Constituency, The Intellectual Property Constituency, The Business Users Constituency,
The gTLD Registrar Constituency, The gTLD Registry Constituency and The Non-Commercial Users Constituency.