[discuss] ICANN accountability and Internet Governance Principles

Thu Apr 3 08:56:39 UTC 2014

One way to look at it is, this is just the circumstance during the
transition, until the NTIA actually hands over IANA to whatever's
cooked up.

But the other thing is, at bottom what you're seeing revealed here
might indicate that many might not actually quite have the ability to
conceive something that will work effectively to assure a framework
that secures the "culture of free expression" *except* through the US
being in this position in the background.

And actually, that's for good reason.  It actually reflects the nature
of the international arena, where there's no priority of the people,
just of governments.  But at the same time it is a failure of
imagination, because there are some structural ways to provide for
strong standing for fundamental rights.

There can be "big power" that always talks, so to speak -- but the
test is really about whether the framework we end up handing over to
is one that "we all" know at bottom that we can claim "for us all."

As a parallel to consider as an illustration: with the of-noted
dominance of the government (in the US and elsewhere) by "big
multinational corporations" that has so thoroughly taken over that we
often feel we have no effective recourse -- we do still have at bottom
the fundamental claim that our free governments are at bottom
governments "of we the people" because we set them up that way --
which means, at bottom, we know we have the most fundamental recourse.

That's what a real, actually effective framework would provide.  But
that doesn't exist, really, internationally, because governments (and
multinationals) have the "epistemic priority" -- there's no
fundamental priority of the people there.

(BTW -- the business of a front face saying MSism, with a background
reserving the "real power" is actually common in "stakeholder" type
situations.  In business, there's often a facilitator-speak used that
says a lot about "surveying and engaging stakeholders" but really at
bottom any business (the massive majority anyway) are "authoritarian"
and what kind of work culture it really is is given in the way things
are "borne out" or done at bottom -- and often that translates into
just what kind of chief executive is running the show at bottom [say,
like an "RFC Editor" like John Postel].  MSism isn't really democracy
in structural and fundamental terms, it's just what people are saying
right now while pondering the notion of international Internet
"governance" or somesuch.  But again, you can still devise effective
structures that do position things well -- if people start thinking in
those lines.)

Seth

On Thu, Apr 3, 2014 at 3:24 AM, Jeanette Hofmann <jeanette at wzb.eu> wrote:
> Now, this scenario I find surprising. At front stage we perform
> multistakeholder while at back stage we keep oversight in the form of G
> something or as unilateral authority?
>
> jeanette
>
> Am 03.04.14 04:58, schrieb Mike Roberts:
>
>> Milton - you are absolutely correct.  But an important related
>> question is whether that really changes with expiration of the IANA
>> contract.
>>
>> Big power is still big power.  And big power makes the rules as it
>> goes along.   The US/EU 199x promises to Ukraine didn't make much
>> difference when push came to shove.
>>
>> One not-very-encouraging principle for the new IANA arrangements
>> might be: "Operate sufficiently under the radar of the G7 (8?) that
>> you don't attract the kind of attention that screws things up."
>>
>> - Mike
>>
>>
>>
>> On Apr 3, 2014, at 10:44 AM, Milton L Mueller <mueller at syr.edu>
>> wrote:
>>
>>> -----Original Message-----
>>>>
>>>> Is there a need to substitute a symbolic funtion? Just delete it
>>>> and you avoid "symbolic" battles and arm-twisting.
>>>>
>>>> Wolfgang
>>>
>>>
>>> The function is not symbolic. Those who have real power constrain
>>> and shape action without having to do anything most of the time.
>>> The mere fact that the NTIA could take the contract away (and it
>>> has threatened to do so visibly at least once in the past 3 years,
>>> and threatened to not enter an ICANN-authorized TLD into the root
>>> once in 2005) is enough to constrain actors.
>>>
>>> The "confidence" allegedly instilled by the USG role means that if
>>> things go badly awry - from the standpoint of the American polity
>>> and a few other closely allied polities - the US can yank control
>>> of the DNS root back. That power is not symbolic. That is real.
>>>
>>> --MM ________________________________
>>>
>>> Von: discuss-bounces at 1net.org im Auftrag von Jeanette Hofmann
>>> Gesendet: Di 01.04.2014 17:39 An: Mike Roberts; discuss at 1net.org
>>> Betreff: Re: [discuss] ICANN accountability and Internet Governance
>>> Principles
>>>
>>>
>>>
>>> Mike,
>>>
>>> don't you think that the existing ICANN structure will have lost an
>>> important element when the transition is completed and the NTIA as
>>> contracting partner is gone? Larry Strickling seems to have
>>> mentioned two roles, the clerical and the symbolic one. I wonder
>>> about the substitute of the latter.
>>>
>>> jeanette
>>>
>>> Am 01.04.2014 17:26, schrieb Mike Roberts:
>>>>
>>>> Thank you, Jeannette, for your insightful note.
>>>>
>>>> It is disingenuous to suggest, even if Larry Strickling said it,
>>>> that NTIA has only a "clerical" role in IANA affairs.  A contract
>>>> is a contract, and IANA/ICANN works for NTIA on this matter.
>>>>
>>>> The more important issue is whether an IANA contract, with
>>>> anyone, is needed go ensure faithful performance of its assigned
>>>> duties.
>>>>
>>>> I, and a number of others, say no.  Accountability concerns are
>>>> more than adequately dealt with by the existing ICANN structure
>>>> and the long standing network of trust relationships that have
>>>> developed over the years around the global functioning of the
>>>> root servers.
>>>>
>>>> It was proposed some weeks ago on the list that proponents of a
>>>> "better" solution needed to demonstrate something superior to
>>>> what we have.
>>>>
>>>> We are still waiting.
>>>>
>>>> - Mike
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> On Apr 1, 2014, at 7:13 AM, Jeanette Hofmann <jeanette at wzb.eu>
>>>> wrote:
>>>>
>>>>> Hi all,
>>>>>
>>>>> I would like to get get back to this thread and raise a few
>>>>> questions.
>>>>>
>>>>> 1. From what I understand the USG regards its role regarding
>>>>> IANA as merely clerical but acknowledges that "sitting in the
>>>>> middle" has had as well a symbolic function since it provides a
>>>>> sense of confidence. What does this mean with regard to the
>>>>> actual tasks to be transferred and the related accountability
>>>>> provisions? In other words, do both the clerical and the
>>>>> symbolic role need a new institutional home?
>>>>>
>>>>> 2. Does Milton and Brenden's proposal take both the clerical
>>>>> and the symbolic dimension into account by creating a new body
>>>>> for the clerical function and and enormous oversight body
>>>>> consisting of all TLD registries and root server operators to
>>>>> accommodate the symbolic function?
>>>>>
>>>>> 3. David Johnson suggests that the new DNSA could condition
>>>>> its clerical role on ICANN's assertion that it won't use its
>>>>> policy authority to regulate content. However, if the DNSA has
>>>>> the right to resist performing IANA functions because it
>>>>> suspects mission creep or that ICANN abuses its policy
>>>>> authority or goes rogue or whatever, is it still adequate to
>>>>> describe its role as purely clerical? My impression is that the
>>>>> suggested separation between the policy process and the IANA
>>>>> function is not well described as policy versus clerical. What
>>>>> Milton, Brenden and David seem to have in mind is more than a
>>>>> clerical entity; something that could rather be compared to a
>>>>> constitutional court (too grand a term, I know!) authorized to
>>>>> check if a proposed policy is within the scope of ICANN's
>>>>> mission.
>>>>>
>>>>> 4. I ask myself if we are dealing with more than one
>>>>> accountability issue: 1. the clerical check to ensure that all
>>>>> conditions are met for modifying the root zone file, 2. the
>>>>> supervisory check to ensure that ICANN doesn't abuse its policy
>>>>> authority, 3. the review of ICANN's internal governance
>>>>> processes and structures. If there are indeed various
>>>>> accountability issues, should they perhaps be discussed
>>>>> separately?
>>>>>
>>>>> Jeanette
>>>>>
>>>>>
>>>>>
>>>>> Am 25.03.2014 01:12, schrieb David Johnson:
>>>>>>
>>>>>> Mike -- I am not sure I fully understand your point. I quite
>>>>>> agree that the functional/clerical part of iana seems to be
>>>>>> working fine. But the ability of icann to condition entry
>>>>>> into the root zone on a contract that it writes, without any
>>>>>> consensus support, that flows down on registries and
>>>>>> registrars and registrants an obligation not to violate "any
>>>>>> applicable law", on potential pain of domain name suspension,
>>>>>> is definitely broken. I have in mind specifically
>>>>>> specification 11 of the new gTLD contracts. This did not come
>>>>>> from iana, I'm sure.  Probably from icann counsel under
>>>>>> pressure from gac and others. Bottom line: take the contracts
>>>>>> seriously and use them to turn away forces that would
>>>>>> ultimately destroy icann by trying to make it do more than
>>>>>> it was designed to do. Icann has to "tie itself to the mast"
>>>>>> to avoid the siren call of internet governance. That would
>>>>>> allow iana to be left alone to continue doing a good job. I
>>>>>> think we actually agree on the goal.
>>>>>>
>>>>>> Drj Sent from my iPad
>>>>>>
>>>>>>> On Mar 24, 2014, at 6:53 PM, Mike Roberts
>>>>>>> <mmr at darwin.ptvy.ca.us> wrote:
>>>>>>>
>>>>>>> David -
>>>>>>>
>>>>>>> I'm afraid this requires some pushback.
>>>>>>>
>>>>>>> The major underlying point of your proposal is that we
>>>>>>> continue using the global IANA function as a hostage to a
>>>>>>> variety of other policy objectives in the IG space.  For
>>>>>>> reasons recited previously on this list, that is a bad
>>>>>>> idea.  IANA is doing a good and necessary job, despite the
>>>>>>> contract for its services in favor of the USG, not because
>>>>>>> of the contract.  It deserves to be left alone to do that
>>>>>>> job.
>>>>>>>
>>>>>>> I agree with your point about domain name users looking to
>>>>>>> national consumer protection authorities for relief, but
>>>>>>> that doesn't entirely deal with business practices between
>>>>>>> and among registries and registrars, which are governed by
>>>>>>> contracts with ICANN. Milton, if I read him correctly,
>>>>>>> views that as primarily a matter of maintaining a level
>>>>>>> playing field for competition in the delivery of such
>>>>>>> services.  Since there are all kinds of civil and criminal
>>>>>>> remedies, in multiple legal jurisdictions,  for unlawful
>>>>>>> behavior by the parties to those contracts, there is a
>>>>>>> question as to the magnitude of IG based "accountability"
>>>>>>> protections to be loaded on top of what already exists.
>>>>>>> Some on this list have essentially taken the position that
>>>>>>> current law is simply an instrument of American economic
>>>>>>> imperialism.  That is an interesting point of view, but
>>>>>>> irrelevant to what we are about. Future arrangements for MS
>>>>>>> will be governed, or not, by the law as it stands today.
>>>>>>> Arguments o
>>>>>
>>>>> ver ICANN are not going to be the straw that breaks the back
>>>>> of imperialism.
>>>>>>>
>>>>>>>
>>>>>>> You would be the first to acknowledge that "standards"
>>>>>>> don't mean much without some enforcement mechanism.  Even
>>>>>>> mechanisms that invoke "routing around."   In the current
>>>>>>> dialog about broadening MS to enhance ICANN accountability,
>>>>>>> there isn't going to be any binding legal basis, because
>>>>>>> there isn't any global MS law holding organizations
>>>>>>> accountable, except what might be invented in the way of a
>>>>>>> UN treaty, which no one seems to want. (I'm not mentioning
>>>>>>> trading corporate legal jurisdiction in California for some
>>>>>>> other locale, since that just starts the related arguments
>>>>>>> all over again.)
>>>>>>>
>>>>>>> QED, any of the range of feasible solutions emerging from
>>>>>>> the current "consultation" will be voluntary agreements
>>>>>>> which may not even have the force of contract law due to
>>>>>>> the complexity (and acceptability) of jurisdictional
>>>>>>> issues.
>>>>>>>
>>>>>>> There are multiple ironies in the fact that as we go
>>>>>>> forward, the landscape for accountable policy making within
>>>>>>> the boundaries of the ICANN DNS mission, from the point of
>>>>>>> view of lawyers,  doesn't look much better than it does
>>>>>>> currently.   At least now, you can go to court in
>>>>>>> California and sue the Board for not following its own
>>>>>>> policies, which the dot-xxx folks did successfully a while
>>>>>>> back. Or whine and complain to NTIA, which isn't popular
>>>>>>> either.
>>>>>>>
>>>>>>> - Mike
>>>>>>>
>>>>>>>> On Mar 24, 2014, at 1:42 PM, DAVID JOHNSON
>>>>>>>> <davidr.johnson at verizon.net> wrote:
>>>>>>>>
>>>>>>>> The ICANN community could have a disproportionate and
>>>>>>>> positive impact on NetMundial if it could come together
>>>>>>>> around three principles that relate both to ICANN
>>>>>>>> accountability and to the means by which what Bertrand
>>>>>>>> would call "governance on the net" (governance of online
>>>>>>>> behaviors) should proceed. To wit:
>>>>>>>>
>>>>>>>> 1. Mandatory adhesion flow down contacts, imposing global
>>>>>>>> rules on registrants and end users, must be subject to
>>>>>>>> and supported by a consensus among all affected parties.
>>>>>>>> (The imposition of rules by ICANN staff on new gTLD
>>>>>>>> registries, in the absence of consensus, should be
>>>>>>>> recognized as an abuse of the IANA function -- using the
>>>>>>>> power over the root zone to impose top down rules.)
>>>>>>>>
>>>>>>>> 2. Global rules must be applied globally. (After the US
>>>>>>>> relinquishes its role, the Multi-Stakeholder model, as
>>>>>>>> applied to domain names by ICANN, would be incoherent
>>>>>>>> unless all registries (including ccTLDs) agree to be
>>>>>>>> bound by the global policies that ICANN makes.)
>>>>>>>>
>>>>>>>> 3. Revocation of domain names should not be used to
>>>>>>>> enforce global rules that regulate content or prohibit
>>>>>>>> behaviors that do not threaten the operation of the DNS
>>>>>>>> itself. (ICANN may need to consider the global public
>>>>>>>> interest, but it is not itself a consumer protection
>>>>>>>> agency, a police force, an anti-trust enforcer, or a
>>>>>>>> general purpose internet governance body.)
>>>>>>>>
>>>>>>>> These principles relate to ICANN accountability because
>>>>>>>> they should be part of the standards to which ICANN
>>>>>>>> should be held accountable. They relate to Internet
>>>>>>>> Governance, writ large, because they would clearly tell
>>>>>>>> the broader world what ICANN, as an institution, can and
>>>>>>>> cannot do to solve the problems they are trying to
>>>>>>>> solve.
>>>>>>>>
>>>>>>>> See:
>>>>>>>> http://www.europeaninstitute.org/EA-March-2014/perspectives-us-pla
>>>>>>>>
>>>>>>>>
> ns-to-divest-control-over-internets-icann-dilemma-for-some-europea
>>>>>>>>
>>>>>>>> n-registries.html
>>>>>>>>
>>>>>>>>
>>> _______________________________________________
>>>>>>>>
>>>>>>>> discuss mailing list discuss at 1net.org
>>>>>>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>>>>>
>>>>>>>
>>>>>>
>>>>>> _______________________________________________ discuss
>>>>>> mailing list discuss at 1net.org
>>>>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>>>>
>>>>>
>>>>> _______________________________________________ discuss
>>>>> mailing list discuss at 1net.org
>>>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>>
>>>>
>>>>
>>>> _______________________________________________ discuss mailing
>>>> list discuss at 1net.org
>>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>>
>>>
>>> _______________________________________________ discuss mailing
>>> list discuss at 1net.org
>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>
>>>
>>>
>>> _______________________________________________ discuss mailing
>>> list discuss at 1net.org
>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>>
>>> _______________________________________________ discuss mailing
>>> list discuss at 1net.org
>>> http://1net-mail.1net.org/mailman/listinfo/discuss
>>
>>
>>
>> _______________________________________________ discuss mailing list
>> discuss at 1net.org http://1net-mail.1net.org/mailman/listinfo/discuss
>>
>
> _______________________________________________
> discuss mailing list
> discuss at 1net.org
> http://1net-mail.1net.org/mailman/listinfo/discuss