IP lawyers in the ICANN community have come out swinging against proposed rules that would require them to come clean about who they work for, rules that are supported by registrars and governments.
A proposed policy that would force lawyers to disclose the identities of their clients when they participate in policy-making would violate their clients’ human rights, according to the Intellectual Property Constituency.
The criticisms came in response to an ICANN public comment period on a draft Community Participant Code of Conduct Concerning Statements of Interest, which opened in October and closed this week.
The draft would close a loophole that allows ICANN policy makers to keep their potential conflicts of interest secret when “professional ethical obligations” prevent them from disclosing this information.
“When disclosure cannot be made, the participant must not participate in ICANN processes on that issue,” the draft states.
The changes are keenly supported by the Registrar Stakeholder Group as a whole and by GoDaddy and Tucows in particular. As far as the registrars are concerned, the main problem with the draft is the somewhat vague enforcement mechanisms.
GoDaddy, for example, said in its comments:
We recognize that there may be situations in which a party is unable to disclose their client(s), and in those rare cases, GoDaddy agrees with ICANN’s conclusion that the participant forfeits the ability to participate in associated processes.
It added, echoing the RrSG as a whole, that more clarity is needed on enforcement, where the buck seems to stop with the chair of the working group where the disclosure infraction is alleged to have taken place, with no escalation.
On the opposing side are the IPC, the Business Constituency, and the International Trademark Association, which all filed comments criticizing the proposed changes. The IPC said:
The often-argued response of having attorneys not participate if they fail to uphold their ethical duty to their clients effectively vitiates the human right of representation by counsel and is not for the public benefit. ICANN has agreed to uphold human rights and therefore counsel cannot be compelled to disclose client identity.
Two of the concerns from lawyers is that the policy could require their clients to divulge trade secrets, such as whether they intend to apply for a new gTLD in the forthcoming application round.
Perhaps anticipating the Governmental Advisory Committee’s expected support for the policy changes, which was no secret, the IPC also raises the specter of the policy being broad enough to apply to the governments themselves: should they all be compelled to reveal the names of all the lobbyists who knock on their doors?
This forcing of transparency of national interest would significantly inhibit GAC members from fulfilling their role. Imagine a GAC member from one country filing an SOI saying that their government was being lobbied by numerous parties to gain favor in the New gTLD Rounds?
The GAC’s response to the public comment period was in fact cautiously supportive of the rule changes, saying:
Prima facie, the proposal referring to Statements of Interests seems to be in the right direction, and to fulfil the expectations expressed by the GAC. At the same time, the GAC looks forward to the reactions from ICANN org to the views expressed during the public comment period
Like the registrars, the GAC is looking for more clarity on enforcement mechanisms.
The public comments will by summarized for publication mid-December and the ICANN board could take action on the proposals next year.
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