[discuss] NTIA "Oversight" (was Dear ICANN - Feedback)

[DAVID JOHNSON]

I agree with Mike (!) that "oversight should not constitute "substitute judgment"
And that the internal "accountability" mechanisms (like creation of consensus policies in the gnso) are a different and important thing.
And that the whole point of the exercise is that "oversight" should not be governmental.

But I don't agree that oversight "does not need formal enforcement mechanisms".
What it needs, primarily, is a very clear crisp statement of the specific standards it is entitled to enforce (and, by inference, those it cannot).
For example, an oversight mechanism (with a contractual enforcement mechanism) might be charged with assuring that ICANN can make binding rules only when supported by consensus and only on topics related to preserving the stable and secure operation of the net.
Such a standard would not enable the "oversight" mechanism to second guess specific decisions or icann operations.
It would not rely on embarrassment (e.g., investigative reporting) but something like a global rule of law.
It would be community based, in a sense, because it would not have any troops or technical levers (only a contract to which ICANN would bind itself, as a means of demonstrating its commitment to stay within the limits).
In contrast, giving any outside group the power to opine whether icann was serving the "global public interest" would potentially lead to the kind of "second guessing" that I agree with Mike we should avoid.

The best analogy, in my view, is to a constitutional court, with associated (and quite limited) constitutional standards.
We don't ask courts to decide on what is in the public interest -- that is the job of legislatures, or, in the case of ICANN, the PDP process.
We do ask them to decide when the powers entrusted by the (global internet) polity have been used outside of "constitutional" limits -- e.g., when the executive has unjustifiably ignored the legislature.

What Brazil could achieve is a clear statement that there is a real global internet polity, that it wants to rely on multi-stakeholder policy development to make binding rules to which even states should defer, and that the institutions charged with that political function will establish rule of law oversight mechanisms that constrain potential abuses of the powers granted by that polity.

To be specific, and in particular, and hopefully as a constructive suggestion, I think establishment of such a judicial oversight, via a contract with specific standards, could make most folks comfortable with leaving the iana function inside icann. Who that contract is with seems less important, as long as the counter-party has appropriate incentives to bring the case and there is an independent judicial (arbitration) body that can be trusted to rule impartially on the claim.

drj
On Apr 16, 2014, at 11:31 AM, Mike Roberts wrote:

> It may be useful to distinguish between oversight and accountability, both of which are subject to interpretation and misinterpretation.
> 
> Over a period of tine, ICANN has established, in addition to its fundamental legal accountability as a nonprofit, public benefit corporation, a network of other procedural accountability mechanisms within its open community.  Piling more accountability on top of this stack definitely is a matter of diminishing returns.
> 
> Oversight implies a degree of independent review that is separate, legally and financially, from ICANN.  NTIA currently satisfies that norm, even if it is deficient in the eyes of some because of its USG connection.  
> 
> Oversight, in the sense of independent review, must not include a capacity for substitute judgment, because that just shifts the burden of accountability to yet another organization, further complicating, and potentially obfuscating, an already complex situation.
> 
> A new oversight mechanism, by definition, must limit governmental or other multilateral roles. It needs to be community based, informed, and of a basic character that exposes and comments on potential defects in ICANN policymaking that are not responsive to the needs of the DNS community.  Perhaps an analogy might be to a good investigative reporter.  
> 
> This style of oversight does not need formal enforcement mechanisms.  ICANN would seriously embarrass itself by ignoring the pronouncements of such a body, and likely suffer mandated corrective actions from affected governments holding elected legislative powers.
> 
> 
> - Mike
> 
> 
> 
> 
> 
> 
> 
> 
> On Apr 16, 2014, at 7:08 AM, George Sadowsky <george.sadowsky at gmail.com> wrote:
> 
>> All,
>> 
>> I think that this is an excellent presentation of this point of view, and the best that I have seen on this list.
>> 
>> If one accepts this point of view, then it becomes important to focus upon the characteristics of oversight that such a body might have. 
>> 
>> Alternatively, it might be just as easy to look at the other side of the coin, which is accountability.  T who would ICANN be accountable, and specifically, what for, and how could its requirement to be accountable be judged?
>> 
>> George  
>> 
>> 
>> 
>> On Apr 16, 2014, at 12:02 AM, Shatan, Gregory S. <GShatan at ReedSmith.com> wrote:
>> 
>>> I thought that it might be useful to post my thoughts on defining and replacing  NTIA's "oversight" to this list (originally posted to ianatransition).
>>> 
>>> Greg Shatan
>>> 
>>> -----Original Message-----
>>> From: Shatan, Gregory S.
>>> Sent: Tuesday, April 15, 2014 2:55 PM
>>> To: 'Richard Hill'; Suzanne Woolf; Ian Peter
>>> Cc: George Sadowsky; ianatransition at icann.org
>>> Subject: RE: [IANAtransition] [discuss] Dear ICANN - Feedback
>>> 
>>> I have been following the recent "oversight" discussion with great interest.
>>> 
>>> I look at the "oversight" question somewhat differently.  I would say that NTIA has had broad oversight over ICANN generally.  This stems from a combination of the terms of the IANA Contract, NTIA's ability to withhold or bid out the IANA Contract, and the NTIA's role as the "historic steward" of the Internet.  This broader oversight function was demonstrated in 2011-12, when the NTIA essentially rejected ICANN/IANA's renewal bid and found that no bidder had satisfied the criteria.  As I understand it, this stemmed from concerns about ICANN's accountability and transparency, and not from its performance of the IANA function.  While this may be the only time the NTIA actively exercised this broad oversight function, many would say that NTIA's capacity to act has constrained ICANN (since ICANN would not want to trigger multiple instances of NTIA saber-rattling, much less pulling the saber out of its scabbard).
>>> 
>>> This broad oversight has been blown out of all proportion by some (including certain members of Congress), who believe that this is tantamount to "giving away the Internet,"  thus allowing a "parade of horribles" to intrude on ICANN governance, ending somehow with Putin standing shirtless astride twin cages containing Steve Crocker and Fadi Chehade.  I call these people the "maximalists"; they've gone too far in interpreting NTIA's role and what it means for NTIA to no longer serve that role.
>>> 
>>> On the other hand, there are the "minimalists," who look at the concrete oversight provided by the NTIA's "authorization" of root zone changes, etc.  While "technically" correct (so to speak), this view does not go far enough.  If this were NTIA's only role, why (and under what authority) did NTIA not grant ICANN the IANA Contract right away in 2011-12?  If this were NTIA's only role, why would this be under the microscope at NETmundial, why would the world be watching, why would certain US Congressmen (and women) be up in arms?
>>> 
>>> No, there is definitely more to NTIA's role, and it lies somewhere between the minimalist and maximalist views.  Terms like "check and balance," "watchdog," "backstop," "reining in ICANN" have all been used to describe this broader oversight.
>>> 
>>> It is the relinquishing of this oversight that has many responsible members of this community concerned.  It is the replacement of this oversight that is one of the big questions in designing the IANA transition (or more accurately, the "new normal" after the transition).  It is the failure of ICANN's "scoping document" (among other things) to recognize this broad oversight, in spite of concerns raised by stakeholders, that seems misguided (to say the least).
>>> 
>>> This form of oversight needs to be clearly on the table as a role to be replaced in the transition (not necessarily transitioned as such to a new "overseer," but replaced in some fashion).  If it is going to the "global multistakeholder community" (which I believe is the NTIA's intention), the method and mechanism to do so (and to enforce its oversight if need be) needs to be designed and tested.  It may be that an agglomeration of ICANN stakeholders and I*'s and perhaps other groups will be the participants in this mechanism.  It may be (but certainly doesn't have to be) done through a new "body" of some sort.  ICANN (the corporation) may (or may not) have a role to play in this new oversight (although if it is overseeing itself, that raises substantial issues).
>>> 
>>> There are many other issues that arise in considering how this broad oversight can be functionally replaced.  But the concept and the need to replace it in some fashion have to be clearly acknowledged in these "transition" discussions for that to take place.  And I believe that any solution that fails to take this broad oversight role into account will not be accepted by the multistakeholder community, much less NTIA.
>>> 
>>> Greg Shatan
>>> 
>>> -----Original Message-----
>>> From: ianatransition-bounces at icann.org [mailto:ianatransition-bounces at icann.org] On Behalf Of Richard Hill
>>> Sent: Tuesday, April 15, 2014 4:21 AM
>>> To: Suzanne Woolf; Ian Peter
>>> Cc: George Sadowsky; ianatransition at icann.org
>>> Subject: Re: [IANAtransition] [discuss] Dear ICANN - Feedback
>>> 
>>> Dear Suzanne,
>>> 
>>> You say "It's not immediately obvious to me what's left to provide 'oversight' *for* if it's not the IANA technical functions and it's not root zone policies."
>>> 
>>> For me, what's left to provide is oversight to ensure that the IANA technical function continues to be properly performed and that changes to the root continue to be properly implemented. Some people think that that oversight can be adequately provided by the ICANN Board, others don't.
>>> 
>>> It seems to me that this is what we are discussing.
>>> 
>>> Best,
>>> Richard
>>> 
>>> 
>>> ----- Original Message -----
>>> From: "Suzanne Woolf" <suzworldwide at gmail.com>
>>> To: "Ian Peter" <ian.peter at ianpeter.com>
>>> Cc: "George Sadowsky" <george.sadowsky at gmail.com>; <discuss at 1net.org>; <ianatransition at icann.org>
>>> Sent: Tuesday, April 15, 2014 3:37 AM
>>> Subject: Re: [IANAtransition] [discuss] Dear ICANN - Feedback
>>> 
>>> 
>>>> 
>>>> Ian,
>>>> 
>>>> I'm not George, but I think I understand his question. Sadly, I'm one
>>>> of those "technical people," so I may be even more puzzled than he is.
>>>> 
>>>> Since the IANA functions *are* technical functions, I'm somewhat
>>>> confused as to what decision making is left for the "business,
>>>> governmental, and civil society representatives who don't attend
>>>> ICANN/technical community meetings" when you've declared that the
>>>> day-to-day operations of IANA are not interesting to you and can be left to the "technical community"
>>>> committee ICANN is already proposing.
>>>> 
>>>> The only specific thing I can find in this thread that you've said
>>>> you're interested in is *who* performs the stewardship of these
>>>> technical functions. But I'm not sure why you're interested, given
>>>> that you're not interested in the technical functions of IANA. So I'm
>>>> asking a couple of questions here.
>>>> 
>>>> Do you think the scope of this "everyone but the technical community"
>>>> effort would be "oversight" of the IETF's or the RIRs' policy
>>>> processes for providing direction to IANA? "Oversight" of ICANN's
>>>> decisions and processes about what goes into the root zone?
>>>> "Oversight" of decision-making in other aspects of IANA's or ICANN's work?
>>>> 
>>>> In the course of this discussion on-and-off over many years, it seems
>>>> that often when people talk about "IANA", they really mean the policy
>>>> processes around the part of IANA generally referred to as "Root Zone Management,"
>>>> which is quite specific to a very small set of technical activities
>>>> but is closely coupled with ICANN's most prominent policy activity by
>>>> far. If that's the case here, it makes sense for us to be clear about it.
>>>> 
>>>> In particular, I can agree it makes sense to keep any effort to
>>>> revisit ICANN's policy activities around the contents of the DNS root
>>>> separate from those technical functions that don't interest you (but
>>>> are nonetheless fairly important to the actual functioning and growth
>>>> of the Internet). In fact I think that's been one of the things we've
>>>> largely agreed on, even when disagreeing in significant ways over
>>>> other aspects of the issues at hand.
>>>> 
>>>> Is DNS root zone policy (what names go into the DNS root, operating
>>>> rules for registries) what you intended as the scope of this wider
>>>> effort to provide a plan for oversight?
>>>> 
>>>> If not, I admit I'm still puzzled. It's not immediately obvious to me
>>>> what's left to provide "oversight" *for* if it's not the IANA
>>>> technical functions and it's not root zone policy.
>>>> 
>>>> 
>>>> thanks,
>>>> Suzanne
>>>> 
>>>> On Apr 14, 2014, at 8:14 PM, "Ian Peter" <ian.peter at ianpeter.com> wrote:
>>>> 
>>>>> whatever, George...
>>>>> 
>>>>> Remove the word evolution if it doesnt work for you. My main point
>>>>> here (speaking to you as an ICANN director) is that you must involve
>>>>> the community who don't attend ICANN /technical community meetings in
>>>>> decision making here - including business, governmental, and civil
>>>>> society representatives (and yes we could spend the next five years
>>>>> deciding how to select them or just do it). As you already have a
>>>>> committee of 24 - close to an unworkable size, and with a wider
>>>>> agenda it would seem - I am suggesting a separate group to consider
>>>>> the specific "oversight"  issue from a more focussed stakeholder perspective.
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> Ian Peter
>>>>> 
>>>>> -----Original Message----- From: George Sadowsky
>>>>> Sent: Tuesday, April 15, 2014 9:09 AM
>>>>> To: Peter Ian
>>>>> Cc: ianatransition at icann.org ; discuss at 1net.org
>>>>> Subject: Re: [discuss] Dear ICANN - Feedback
>>>>> 
>>>>> Ian,
>>>>> 
>>>>> I’m trying to get away from the generalities that may sound nice but
>>>>> don’t help us to get at ways of leveraging change.
>>>>> 
>>>>> Are you suggesting a committee to “examine how this function evolves,”
>>>>> the function being ticking the box?  I had thought that we were
>>>>> looking at ways in which this function could be acceptably
>>>>> transferred.  Thjat’s a necessary condition, and it may be sufficient.
>>>>> 
>>>>> When you talk about evolution, that’s an entirely different matter.
>>>>> What is your time frame for this evolution?  20 years?  If so, the
>>>>> internet will be a very different place, and I would question
>>>>> anyone’s ability to predict what the management and governance issues would be at that time.
>>>>> So I have the following follow-up questions:
>>>>> 
>>>>> 1. Why are you concerned about evolution rather than focusing on
>>>>> transfer?
>>>>> 
>>>>> 2. Are there any boundaries on your consideration of such evolution?
>>>>> If so, what are they, and how do they contribute to solving the
>>>>> current problem, i.e. a transition of the IANA function away from the
>>>>> US Government, based upon the constraints laid out by NTIA?  If not,
>>>>> why is this not just futuristic intellectual exercise that will not
>>>>> contribute to the current discussion?
>>>>> 
>>>>> 3. What would the terms of reference of the committee be?  What
>>>>> expertise would the committee have to have in order that its
>>>>> recommendations would be consistent with the current continuation of
>>>>> stable, secure, and resilient Internet functioning?
>>>>> 
>>>>> Regards,
>>>>> 
>>>>> George
>>>>> 
>>>>> 
>>>>> On Apr 13, 2014, at 9:45 PM, Ian Peter <ian.peter at ianpeter.com> wrote:
>>>>> 
>>>>>> George,
>>>>>> 
>>>>>> I would not describe it an an operational function myself. Nothing
>>>>>> operational is involved. NTIA checks to see that appropriate
>>>>>> policies have been followed. And, as you say, ticks the box. Then
>>>>>> the change occurs. I don't call that operational, but maybe that is just semantics.
>>>>>> Many people call this the "oversight" function, but that is not a
>>>>>> good description either.
>>>>>> 
>>>>>> In any case, who performs this  previous NTIA role under new
>>>>>> structures (if anyone)  is the question of broader interest. Which
>>>>>> is why I suggest a committee with wider involvement to examine how this best evolves.
>>>>>> 
>>>>>> Your statement below is a little confusing to me, but to be clear I
>>>>>> am only suggesting a committee to examine how the function evolves
>>>>>> and make recommendations. I am not suggesting a committee to perform
>>>>>> the "oversight" function.
>>>>>> 
>>>>>> Ian Peter
>>>>>> 
>>>>>> -----Original Message----- From: George Sadowsky
>>>>>> Sent: Monday, April 14, 2014 11:26 AM
>>>>>> To: Peter Ian
>>>>>> Cc: ianatransition at icann.org ; discuss at 1net.org
>>>>>> Subject: Re: [discuss] Dear ICANN - Feedback
>>>>>> 
>>>>>> Ian,
>>>>>> 
>>>>>> I want to probe your response below somewhat further.
>>>>>> 
>>>>>> At the moment, the IANA operational function that NTIA performs is,
>>>>>> in the case of any new delegation or redelegation of any entry in
>>>>>> the root zone file. NTIA checks to see that the appropriate policies
>>>>>> have been followed. If they have, IANA checks the box, and the change occurs.
>>>>>> 
>>>>>> Is this the function that you suggest should be delegated to a
>>>>>> separate committee involving wider representation from the wider
>>>>>> multistakeholder community involving a much wider range of
>>>>>> governmental, civil society and business interests?
>>>>>> 
>>>>>> If not, could you please be precise in describing exactly which
>>>>>> other functions are to be replaced by this wider group?
>>>>>> 
>>>>>> George
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> On Apr 13, 2014, at 8:58 PM, Ian Peter <ian.peter at ianpeter.com> wrote:
>>>>>> 
>>>>>>> Dear ICANN,
>>>>>>> 
>>>>>>> You have asked for feedback on your proposal, so here is mine.
>>>>>>> 
>>>>>>> Firstly, I now think your Steering Committee is fine for most of
>>>>>>> your initial tasks. I originally did not, as it is narrowly
>>>>>>> constricted to the technical community rather than the wider
>>>>>>> multistakeholder community involved with internet governance
>>>>>>> issues. However, as I can see from the scattered discussions
>>>>>>> occurring here and on other lists, there seem to be quite a few
>>>>>>> people wanting to talk about the minutae of day to day operational
>>>>>>> matters, and your steering committee will serve to bring some focus
>>>>>>> and structure to those discussions. I would suggest your first task
>>>>>>> might be to examine which if any of the current functions, each of
>>>>>>> which seem to have been performed well for over a decade, might need to be re-examined.
>>>>>>> 
>>>>>>> But for most of us, these discussions are beyond our level of
>>>>>>> interest, and hence you will notice on this list and on others the
>>>>>>> number of people who have just stopped engaging.
>>>>>>> 
>>>>>>> However, there is one issue on which many of us to maintain some
>>>>>>> interest, and that is the oversight function which was the subject
>>>>>>> of the NTIA announcement. This has been described as simply
>>>>>>> clerical, some of us have seen it as largely symbolic, but whatever
>>>>>>> the reality is, this function has been the subject of contention
>>>>>>> for over a decade and will continue to be – not so much in the
>>>>>>> narrow steering committee of the technical groups, but in the wider
>>>>>>> multistakeholder community involving a much wider range of
>>>>>>> governmental, civil society and business interests.
>>>>>>> 
>>>>>>> Which is where my main suggestion lies. I think you need a separate
>>>>>>> committee to look at this particular issue, and one which involves
>>>>>>> representation from wider stakeholder groups not directly
>>>>>>> associated with the technical community – because, in the end, they
>>>>>>> will make or break any proposal for change here. I urge you to look
>>>>>>> at the appropriate way to engage this wider stakeholder group – as
>>>>>>> well, perhaps you could engage this wider and more representative
>>>>>>> group with involvement at eg the Internet Governance Forum, a
>>>>>>> notable absentee from your calendar of events.
>>>>>>> 
>>>>>>> One more suggestion and word of caution. There seems to be a
>>>>>>> prevailing thought that it doesn’t matter how long it takes to
>>>>>>> resolve this, and if it goes beyond September 2015 so be it. I
>>>>>>> disagree. If ICANN and associated bodies cannot come up with a
>>>>>>> structure for a simple governance function in 18 months – a task
>>>>>>> any government or corporation could do in less than three months –
>>>>>>> it will be widely perceived as being incapable and inefficient.
>>>>>>> People will lose patience and begin to look at other alternatives.
>>>>>>> So I do suggest that you add some firm timelines to your deliberations.
>>>>>>> 
>>>>>>> I hope this input is useful to you. I look forward to some more
>>>>>>> structured discussion in the future, and to a recognition that the
>>>>>>> sorts of matters largely being discussed here are in many cases not
>>>>>>> the matters that concern the wider community of interests beyond
>>>>>>> the technical community. You must structure your activities to
>>>>>>> engage those wider interests positively.
>>>>>>> 
>>>>>>> Ian Peter
>>>>>>> 
>>>>>>> _______________________________________________
>>>>>>> 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
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