[discuss] who has the power? and how do we constrain it?

DAVID JOHNSON davidr.johnson at verizon.net
Wed Apr 2 00:37:22 UTC 2014

I'm very sympathetic to the view that everyone should be involved, have a voice. (maybe even a vote -- or a revocable, transferrable proxy)
But we have to analyze the institutional arrangements in terms of who has power, and how the power will be constrained.

Right now, the root zone servers really have the power, because they decide who to point to.
They have given power to iana (currently icann, verisign, doc) based on trust -- well placed.

But the power over the conditions under which registrants get domains in new gTLDs has (unfortunately) been placed in the icann general counsel's office.
and largely ignored by the greater community because no one can be bothered to read complex contracts and there is an assumption that those affected by them in some sense "agree" to be bound.

notwithstanding general agreements with legacy tlds, and non-agreements with ccTLDs., icann has the power to condition its approval for entry of a new gTLD into the root.
And it has used that to impose new contract terms that are not in any sense supported by consensus.
and these flow down onto registrants -- monopoly adhesion contracts -- regardless of any multi-stakeholder input.

I am certainly not a fan of litigation.
But the only possible source of global order for the internet is globally enforceable contracts.
And the key question for us is who the contracts will be with -- and whether they will be voluntary (or not) -- and whether they will constrain arbitrary uses of power.
I hope that we will agree that ICANN can impose contracts (on registries, and therefore on registrars, and therefore on registrants) only if there is a consensus in the ms process that these requirements are necessary to assure sound operation of the dns, and do not involve regulation of content. And I hope ICANN itself can find its way to enter to into some contract that holds it to those limits -- so it can turn away the pressures from those who want to turn its registries and registrars into involuntary policemen of the net (on behalf of whoever can take control of or intimidate the icann board).

On Apr 1, 2014, at 7:48 PM, Shatan, Gregory S. wrote:

> Each stakeholder group would probably nominate itself for chicken, and ICANN and/or another stakeholder group as fox.
> I think the multi-equal, bottom-up, consensus-driven multistakeholder model is the right starting point for Internet governance.  Turning any model  (MS or not) into reality has to deal with all kinds of issues of checks and balances, constraints, conflicts of interest, etc.
> I lost track of who the hens, chickens, foxes and cross-dressing animals were supposed to be standing for in the metaphor....
> As to the specific statement:
> "If you don't trust a body composed of all the registries in the world with the small but potent power to hold ICANN to a narrow (non-content regulating) mission, subject to their need to convince a judiciary that those constitutional bounds have been overstepped, then you need to think harder about how to give real power to the hens themselves."
> I don't find this to be statement I can support on a number of levels.
> I will say first, I don't trust a "body composed of all the registries in the world" to do anything other than represent the interests of registries.  (I certainly would not expect them to be some sort of benevolent proxy for the end-user hens -- and I say that with respect and affection for the registry representatives I have known.)
> I have tried to imagine an ICANN run solely by the registries (some might say I don't have to try very hard); other than the fact that all the new gTLDs would have been delegated years ago and thus behind us, I don't like what I imagined all that much.  (The same could probably be said of an ICANN run by any one stakeholder group....)   Any group that has the power (and powers tend not to stay small) to hold ICANN to its mission (which I would not categorize as narrow) should be a multistakeholder group.  Also, I tend to think of Internet Governance as a form of self-regulation; the suggestion that litigation would be an essential piece of the regulatory puzzle is a little alarming.  (Of course, litigation is always an option, regardless of the regulatory set-up, and regardless of whether one creates additional litigants or not.)  I don’t think that most of the potentially mission-violative activity of ICANN would be an issue of constitutional magnitude or relevance.  If it ever is, I'm sure we can find litigants without creating them.
> Giving end-users more power in the system is an issue with a great number of dimensions.  In Singapore, there were discussions of giving more power to both commercial and non-commercial end-users in the developing world, and more power to end-users with accessibility issues, and more power to would-be end-users who have no Internet access at all.  Education, outreach, engagement and support are all part of bringing in more stakeholder voices.  Nonetheless, in the end I still come back to the MS model (well-implemented) as the right setting for that power, as well as those of other stakeholders.
> Greg Shatan
> -----Original Message-----
> From: DAVID JOHNSON [mailto:davidr.johnson at verizon.net]
> Sent: Tuesday, April 01, 2014 5:41 PM
> To: Brian E Carpenter; discuss at 1net.org List
> Cc: Shatan, Gregory S.
> Subject: hens and foxes
> It would seem that the hens (us chickens) are the end users (or at least domain name registrants).
> But who is playing (or might play) the fox?
> It would seem that one thing we know about the netizenry is that they do not like the idea of having their internet identities taken away for copyright infringement (much less "violation of any applicable law") Yet that is exactly where the current drift of the new gTLD contracts is taking us.
> If ICANN had a membership composed mostly of end users, that would not happen.
> If there were *any* entity that had a binding promise from ICANN not to regulate content on the net, and if that entity had the means and general incentive to enforce the contract, then such content regulation would be much less likely, no matter what pressures came from the GAC.
> Such a contract would not put the new entity (putative "fox") "in charge" of ICANN -- it would merely prevent ICANN from becoming a potential "fox".
> Governments claim to be the exclusive spokesmen for the hens.
> Those who believe in the multi-stakeholder model believe there are lots of different types of hens and many can speak for themselves (individually in groups).
> We do need to protect the henhouse from a potential fox.
> But simply trusting the leading hens not to transform, some day, under pressure from governments, into foxes in hens clothing is not a sufficiently stable solution.
> Separation of powers assumes real, and constrained, powers on both sides of the equation.
> If you don't trust a body composed of all the registries in the world with the small but potent power to hold ICANN to a narrow (non-content regulating) mission, subject to their need to convince a judiciary that those constitutional bounds have been overstepped, then you need to think harder about how to give real power to the hens themselves.
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