[discuss] Why oversight? (was Re: Opportunity for input on the development process forIANAoversight transition plan)

[Andrew Sullivan]

Hi,

Thanks for your reply.  

On Wed, Apr 02, 2014 at 04:28:38PM +0530, parminder wrote:
> 
> On Tuesday 01 April 2014 06:28 PM, Andrew Sullivan wrote:
> >On Tue, Apr 01, 2014 at 04:31:55PM +0530, parminder wrote:
> >
> >>What is really needed is an external, arms length, oversight over
> >>the working of this 'technical community', without  interfering in
> >>its day to day functions.
> >Why is that needed?  Why do some think it would help?  What problem is
> >it trying to solve?
> 
> The problem can be seen at two related levels.
> 
> One, ICANN's board as ICANN's decision making body is not
> constituted in a manner to be able to given a sovereign role or
> status, that is, there be no authority at all over it to check
> abuses etc.

That's helpful, but I think your original suggestion was that the
_technical_ community needed oversight, and "ICANN" covers a lot of
ground, some of which is manifestly not technical.  If what you are
saying is that ICANN as policy-making body needs oversight from
sovereign powers, that is different from saying that all technical
bodies active in the Internet need sovereign oversight.  In particular
in the matter of the altered arrangements for IANA (which is a
techno-clerical function and not a policy-making one), would you still
claim that such sovereign oversight is needed?  I think, based on your
other remarks, that the answer is, "Yes," so I'll proceed on that
assumption; but I'm prepared for a reason as to why not.

> Yes, legitimacy, as in democratic legitimacy, has a technical
> meaning. It is not based to expertise or knowledge, which are often
> spurious terms masking self-interest. It is based on necessary
> political equality of all people, which means a fully equal right
> and role of all people to decide on issues of common/ public
> interest. This ideal is sought to realised through political
> institutions, which remain imperfect and evolving, but always guided
> by this basic basic principle. That is legitimacy.

If I understand you correctly, you are claiming that in any case where
there is a common or public interest, there is one overarching claim
that trumps all others, which is the right of people to be part of the
decision-making (I'll call this principle "democratic legitimacy",
following your term).  If for the sake of argument I grant this
premise, I'm not sure it helps, for we must immediately confront new
practical problems.  As you note, political institutions are
imperfect; but I would go rather further and observe that some
political institutions are less perfect than others in the way they
realise democratic legitimacy.  Indeed, I think it is safe to say that
some political institutions call themselves democratically legitimate
spuriously, masking self-interest.  So the mere _claim_ of democratic
legitimacy isn't enough.

The practical problem, then, in creating a supervisory system that is
democratically legitimate is that one has to select which political
institutions get to be included as democratically legitimate, and
which must be excluded.  That's actually two problems, because not
only do we have to have some mechanism of deciding that legitimacy; we
also have the possibility that some people will be excluded, in case
the political regime under which they fall is not democratically
legitimate.  This would make the whole supervisory system less
democratically legitimate itself, thereby undermining its claim to
perform the oversight.

The only other possible approach is to stipulate that all functioning
governments are, by definition, democratically legitimate.  If we do
that, however, the justification for the oversight function reduces to
raw power, and I'm not convinced that is much of an argument for why
the technical community (or anyone else) ought to accept such
oversight at a new, global scale.

> >but many of us are willing to help and the technical communities
> >mostly have, as far as I can see, processes that are designed to
> >enable such participation.  (To the extent not, let's work on _that_,
> >and not invent a new layer.)
> 
> I read mails here, for instance one from Stephan Farell, on 31st
> March, that IETF is *not* meant to take into account public policy
> concerns in any systematic way. IETF and other such technical
> processes are not developed to understand political equality,
> representation, democratic legitimacy, and such things. They are
> based on very different kinds of principles which may well be best
> for their delegated technical functions.

That is right, but that doesn't mean that those who think that such
concerns are primary cannot take such arguments into the technical
bodies as part of the process of defining the work there.  To speak in
particular about the IETF, it is set up with an overarching goal of
developing protocol, not policy.  If one's claim is that there are
some protocols that the IETF _should not_ develop because they permit
evil policies, then probably one is going to have a rough road at the
IETF, because it strives to be neutral on such things.  If, however,
one's argument is that the IETF ought to take such-and-thus factor
into consideration because that enables certain policy options, then I
think one's chances of success are greater at the IETF.  So partly
this issue boils down to what you want the oversight function to do.

> Anything that is constituted as legitimate public policy authority
> will be called government - so it is bit of a circular argument.....

I suspect it is either completely circular or false.  If your claim is
that the definition of democratic legitimacy is, "Who is the
government?" then this is not "a bit" circular, but completely
circular (not to mention an unusual definition of "democratic").  If
instead you claim that democratically legitimate structures always
displace democratically illegitimate ones as the government of a
nation-state, then I think there is considerable empirical evidence
that such is at least not obvious.

> non-legitimate actors seeking to make public policy... There is no
> equality in that sense between governments on one hand and
> businesses or civil society actors (who are self appointed) on the
> other.

My observation of the world is that there are plenty of governments
who are self-appointed too.  I don't think that it helps us to point
to the manifold cases of poor behaviour on the part of some
non-governmental groups without acknowledging that there are similar
problems among some governments.

There is moreover an overall objection I have to your argument, which
is to your original premise.  You seem to be arguing that democratic
legitimacy is an overarching and primary value, trumping all others in
technical policy debates.  I conceded that for the sake of argument,
but actually I don't think it is true.  For instance, technical
feasibility and compatibility with deployed systems are, I think,
legitimate limiting factors on that democratic legitimacy.  To give an
example outside the Internet space, even if everyone agreed that
suburban sprawl is always everywhere bad, there isn't actually much
North Americans can do about it now.  We built a world that looks like
that.  We could stop _continuing_ in that direction, but the
low-density megalopolis between New York and Washington or across most
of southern Ontario is already built.  So it is with the Internet: the
last time we could demand everybody make a co-ordinated change on the
Internet, you could get a list of the names of all the Internet users,
mimeographed on paper.  And that event still didn't come off smoothly.
Certain possibly legitimate public policy goals are no longer possible
given the system we have.

But I nevertheless think we have made some progress here, because it
now strikes me that there are two different kinds of "oversight" that
might be intended.  I'm not sure which it is.  The first is a negative
oversight: "You want to develop technical feature foo, but foo closes
off a legitimate public policy option PO.  You should not do that."
The second is a positive oversight: "We have public policy PP we wish
to implement.  You shall develop the necessary technical support."

I claim that the "negative oversight" goal is already possible within
the existing structures, although at the cost of accepting that public
policy is merely one more factor to be considered in the discussion.
If what is desired is positive oversight, however, I think it is not
possible except indirectly, by funding people to work on and develop
that technical support.

Best regards,

Andrew

-- 
Andrew Sullivan
ajs at anvilwalrusden.com