Those governments opposed highlighted [PDF] the fact that the GAC remains an advisory committee and does not have any input into the selection of board members. They also argued that the proposal was unfairly limiting the influence of governments when compared to other groups, since for the rest of them, the two-thirds rule will remain.
"Decisions could theoretically be made without any significant GAC input," argued the formal response. "To prevent this, we believe governments shall not be bound by one single rule of decision-making, particularly if potentially controversial topics are to be considered."
Despite long discussions in Marrakesh, governments were unable to reach agreement between themselves on any changes. They did agree, however, to pass the transition plan on to the ICANN board, rather than block it, while formally noting that "there are delegations that are not able to support the proposal as a whole."
It will now fall to the ICANN board to receive the proposal, forward it to the US government and decide whether to send its own letter outlining any concerns or suggestions it has.
Despite understandable celebrations in Marrakesh over the approval of the plan following two years of discussions, the internet community is, in part, confusing hard work with a good result.
Two significant flaws remain in the proposal, both of which reflect the propensity of the policymakers that turn up to ICANN conferences to believe in process over clarity.
One key issue is whether and how the IANA contract can be separated from ICANN at a later date if it is seen to be underperforming – a key requirement recognized very early on in the process.
Under the current proposal, the process for achieving such a split is so convoluted that it all but guarantees it will be impossible to actually effect. As a result, it significantly reduces the ability of the internet community to force improvements onto ICANN.
This deep flaw will likely cause current processes to fossilize and make future changes aimed at reflecting the ever-changing internet much harder to implement.
The other main flaw comes with respect to ICANN itself. The organization will enjoy a significant boost in power and autonomy when the transition plan occurs, but efforts to improve its notorious lack of accountability have fallen short, despite the existence of a dedicated group working on the issue.
While a significant number of improvements and recommendations have been made, they all rely on additional or improved processes to work while history has shown that faced with determined resistance from ICANN's staff, those processes are, at best, ineffectual.
A formal proposal to give the internet community a legal right to interject was beaten back by ICANN's staff who claimed, among other things, that such a move would be illegal. The board also successfully bluffed that it would rather walk away from the entire transition than see limits put on its ultimate decision-making power.
The result of the decision not to ensure the internet community had a legal right to force change will likely haunt it for many years to come. ®