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

Thu Apr 17 06:19:32 UTC 2014

Am 17.04.14 00:23, schrieb 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.

I agree too. Accountability by definition is, or should be, separate
from substantive rule making.
>
> 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).

I am not sure what you mean by standards in this context. Enforcement 
mechanisms
should cover procedural as well as missions-related matters.

Do you think that enforcement standards for the IANA functions-related
oversight should be separate and thus different from that of other
oversight areas?

>
> 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.

I agree and have used the same analogy at the IGF-D.

> 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.

Does your global internet polity imply that ICANN would transform from a 
contract-based regime to a body that sets law-like rules?
>
> 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.

If I understand you correctly, an independent oversight with enforcement 
capacity should make it irrelevant whether IANA functions are carried 
out by ICANN or another, separate body.

jeaentte

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
>>>>>>>>
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