[discuss] Possible approaches to solving "problem no. 1"

[Mike Roberts]

It should be noted that Milton's option 3 was ICANN's original intent, prior to intervention by government lawyers at the end of 1998.

- M.



On Feb 12, 2014, at 1:47 PM, Milton L Mueller <mueller at SYR.EDU> wrote:

>  
> George. You did not quite get the 3 options right. They were:
> 1)      Unilateral control by 1 govt (the status quo)
> 2)      Multilateral control
> 3)      De-nationalization of the IANA function; ie., removal of USG control and delegation of it to ICANN. Note well: this does NOT require exclusion of governments from all involvement in ICANN.
>  
> What you propose as a solution, “one based upon multistkeholderism,” is actually an attempt to avoid coming to grips with difference between #2 and #3. By attempting to do this, you are seriously muddying the waters at a time that we need absolutely clarity.
>  
> EITHER root zone changes are the responsibility of ICANN, in which case you are advocating #3 (because ICANN is not an intergovernmental organization) OR governments have some kind of special authority over root zone changes, in which case your solution devolves to #2. Please decide which one you are advocating. I will not let you waffle.
>  
> What you’ve done in an attempt to discredit the de-nationalization option is to pretend that if we devolve control to ICANN, that governments are excluded entirely from the process. This is obviously false. Governments currently play a major role in ICANN, via GAC advice. So one could easily cut the cord to the USG, vest the IANA function in ICANN fully, and governments would still be involved. Even if the GAC were dismantled, as some of us favor, it is still completely possible and indeed desirable for individuals who work for or are contracted by governments to participate in ICANN.
>  
> Some of us are proposing to reform the role of governments in ICANN to make it consistent with a truly equal-status, multistakeholder governance process. I am really getting tired of hearing, as a response to these proposals, that “governments are a part of our world and we can’t ignore or exclude then.” That is either a dishonest or a completely clueless response. By eliminating special powers for governments and avoiding intergovernmental control, we are not proposing to completely exclude governments from the process. We are simply proposing to adhere more consistently to the MS model and give government agencies and employees the same status as everyone else.
>  
> Milton Mueller
> Professor, Syracuse University School of Information Studies
> http://faculty.ischool.syr.edu/mueller/
>  
>  
>  
>  
> >The third approach is in my view equally unrealistic.  Governments are
> >a part of our world.  They have useful and essential functions  We depend upon the creation and evolution of legal structures along with the administrative and judicial mechanisms that institutes and implement them.  We may be concerned with their inappropriate use of power, but we can’t deny that they have a place at the table.  We are likely, however, to differ about what that place is and what limitations might be put upon them.
> 
> The second approach, one based upon multistakeholderism, seems like the only viable and significantly acceptable one.  While that choice may be comforting in terms of its inclusive orientation, the space of solutions that could be called multistakeholder is vast and multidimensional, with the only necessary condition for being in the set is that all relevant stakeholder groups, however defined, have some degree of inclusion into the process and that no one group has an absolute veto over the activities of the group.  Distributions of power, representation, and decision making authority all vary, possibly enormously among stakeholder groups.  The very choice of what groups are included and who they include contributes to the diversity among solutions.  (For example, while ICANN correctly claims to be organized according to a multistakeholder model, in fact it is organized in accordance with a very specific and well-defined instantiation of the multistakeholder model.)
> 
> So if we are going to talk about multi-stakeholder approaches to the problem, we will need to differentiate between a variety of them that might be suggested.  Saying that an approach is a multi-stakeholder approach is not sufficient; it will need to be characterized in a more definite manner.
> 
> Finally, any approach that will be successful must make the great majority of us comfortable with its ability to maintain security, stability, and independence of the Internet’s fundamental naming and addressing systems, and with its ability to withstand takeover by any special interests.  Governments, including the US government, must be an integral part of that majority if any transition is to be feasible and ultimately successful.  Solutions that do not meet this criterion, and are not demonstrably better than what we have now, should not and will not be adopted.
> 
> 
> Incremental approaches
> 
> Assuming that there are continuity and stability virtues in minimizing the amount of change that is made, I ask myself: are there acceptable solutions to the problem that minimize the account of change needed?  In which direction would they go?  I personally don’t have a good answer for that.  Perhaps others do.
> 
> 
> Diplomatic approaches, from Jovan Kurbalija
> 
> In a recent provocative article,  Jovan Kurbalija has outlined a number of scenarios that find their rationale in established diplomatic behavior.  The article, at:
> 
>                         http://www.diplomacy.edu/blog/international-inviolability-root-zone
> 
> contains the following scenarios.  I include them here because I think they represent serious approaches to the issue we’re discussing.  They may or may not be practical.
> 
> 
> USE DIPLOMATIC LAW APPROACH TO SOLVE THE POLICY PROBLEM OF THE ROOT ZONE
> 
> The predominantly symbolic relevance of the root zone issue has created the basis for an analogy with diplomatic law, which deals with another highly symbolic issue: representation  of countries. It includes diplomatic precedence, the protection of diplomatic buildings, and the main functions of representation.[3] How can the regulation of symbolic aspects of diplomatic relations help in regulating the symbolic aspects of Internet politics? Here are two possibilities:
> 
> The first possibility could be described as a ‘physical’ one, making the server and root database inviolable, in particular from any national jurisdiction. This possibility opens the question of where the root server will be located.  It could be located at the UN premises in New York and Geneva, which would simplify matters, since those entities already enjoy inviolability, including immunity from any national jurisdiction. Another option, such as continuing to use the current location would require changes in the US national law, in order to ensure international inviolability of the root database.  One could also consider assigning root zone file immunity as part of an ICANN+ arrangement (making ICANN a quasi-international organisation – discussed further down in the text). [4]
> 
> The second possibility, which is a ‘virtual’ one: the root database should be assigned inviolabilityper se, wherever it is located. This solution is based on the analogy with diplomatic law which specifies that ‘[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be.’ (i.e. article 24 of the Vienna Convention on Diplomatic  Relations).
> 
> In this way, the root database can enjoy inviolability according to international law. Neither the USA,  nor any other authority, can interfere with the root database without necessary authorization. This could be the first phase in the policy process, which could build trust, and prepare for the second phase, which has to deal with the more difficult question:
> 
> WHO WILL HAVE THE RIGHT TO AMEND THE ROOT DATABASE?
> 
> Here we get back to the question of decision-making process and  the status of ICANN. This has been exhaustively discussed, and it is clear that a workable solution should be based on a high level of inclusion, transparency, and checks and balances. As a practical solution for the root zone file, one could think of a double key system, involving a strengthened ICANN, with a stronger role for the GAC (to some extent codifying and formalizing what has been happening through the growing relevance of the GAC). A possible role for a reformed UN Trusteeship council could also be considered, as one of the actors in this checks and balances system.
> 
> ICANN’s new quasi-international status, for example, following Swiss laws, could address most of the above-mentioned points. Shifting ICANN from the national to the international level, would require ensuring ICANN’s accountability towards consumers, users, and the Internet industry. Immunity should not be impunity.  Again, here we could have a solution through the interplay between international public law and private law options.
> 
> HOW TO ACHIEVE THE NEW ROOT ZONE ARRANGEMENT?
> 
> The closest analogy is the governance of the Red Cross system. Analogous to the Geneva conventions in the humanitarian field, ‘a root convention’ would minimally grant immunity to the root database, and maximally specify how the root database would be managed. If the adoption of a root zone file convention would be too complex, one could consider an advisory opinion of the International Court of Justice, which could recognize the ‘instant’ customary law (practice of the US government of not interfering in countries' domain names without the consent of these countries). Either a convention or instant customary law would provide a functional basis for ICANN, which could be a quasi-international organisation, with a carefully balanced checks and balances approach, and a prominent role for the GAC. Such an ICANN+ would both host the root server, and manage the root database.
> 
> There are some other solutions and possibilities. The bottom line is that there is a solution that could be both practical and legal. The symbolic issue of the root zone, at least, could be put to rest, and allow us to spend ‘policy energy’ on more practical and relevant issues. It could be also be a reasonable compromise.
>  
> 
> Conclusion
> 
> It’s quite possible that all of the above is a product of too limited thinking, and that an alternative, more comprehensive and high level approach looking at the entire Internet ecosystem as a whole might be more fruitful.  If so, what might such an approach be based upon, and why might it look like?  Perhaps on further reflection, and considering possible approaches to it, we may find that the problem definition is lacking, and needs modification or amplification.  If so, that represented profess of a certain kind.
> 
> I present the above as my thoughts regarding possible approaches, with a large contribution from Jovan.  I admit to not having good answers to the problem, but I hope that the above material is helpful to starting a serious discussion.  If there is any appetite on the list to continue this discussion, I, and possibly others, would be interested in your comments.
> 
> Regards,
> 
> George
> 
> 
> 
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