[discuss] governments and rule of law (was: Possible approaches to solving...)

Mon Feb 24 11:53:59 UTC 2014

On Feb 24, 2014, at 2:57 AM, Peter Dengate Thrush <barrister at chambers.gen.nz> wrote:

> This is an excellent debate on a crucial point.
> 
> While I completely agree with Milton's description of the way some members of the GAC, and occasionally the GAC as a whole behaves inside ICANN, and also with David's exemplification of that in recent times, I draw a different conclusion than the one reached (or implied, at least) by Milton. 
> 
> I see the inclusion of the GAC inside ICANN in an advisory role as one of the crowning successes of ICANN.

Peter - 

  I might agree with you that the government acceptance of (and participation
  in) the GAC is a remarkable success for ICANN, but would I would probably
  have to limit my praise to solely to that participation and not to the 
  broader question of the structure of the GAC within ICANN and/or the 
  implications for ICANN's accountability...

> Its a global first to have governments in an advisory, not supervisory or regulatory role.
> That is an amazing situation for governments to find themselves in.
> Its an extraordinary bulwark of the multistakeholder model.
> And governments are growing used to their new role.
> 
> It is of some concern to me that governments in the GAC may make demands that their national laws would not deliver at home, but I see that can be used to great advantage.
> First, it allows rule-making that may be most appropriate in the conditions.
> Governments may be unable in their national legislatures for a variety of local conditions to get laws passed that are actually appropriate for the global internet. The most important question is "is it the right thing" not - "is there a law for it".
> 
> Second, to require national law as a precondition would start to subjugate ICANN to national legislatures; part of the benefit of this new system of governance is that ICANN should be flexible to adopt rules/policies of its own choosing. The other road leads to individual government veto over ICANN. The same point is true of international law, although the persuasive power of a relevant global treaty is likely to be much greater than a single of collection of national laws.

  If we presuppose that the role of the GAC is primarily to provide advice regarding 
  aspects of ICANN policies which may intersect public policy matters (rather than 
  serving in an oversight/accountability role), then indeed it could be helpful at 
  times to have consideration during the policy development process of those aspects 
  of policy which may pose issues for governments and/or may intersect various 
  governments' laws, policies, and practices.

  The difficulty, of course, with such an approach is that the consideration and input 
  needs to be made available _during the policy development process_ rather than at the
  final conclusion of the process during ICANN Board consideration (when all of the other 
  stakeholders are no longer in the room to consider or respond to such GAC advice.)

  The current structure of GAC providing advice to the Board only makes sense if the 
  ICANN Board's role is actually "The DNS Policy Board" rather than actually ICANN's
  Organizational Board (which must have a much greater scope including administration 
  of the policy, the operation of crucial shared systems and services, and providing 
  for accountability of the entire ICANN organization to the Internet community.)

> Third, the fact that there is no national or international law can be used by the Board as a ground for declining to follow GAC advice.
> 
> In other words, we have a flexible situation where ICANN can choose the best option for the Internet.
> 
> The crucial element in the operation of the model is the role played by the ICANN board, which, as most know, is not obliged to accept that advice.
> If it doesn't, it is obliged to attempt rapprochement, then explain itself in writing.

  Given the ICANN Board's role you've stated above, the positioning of the GAC makes
  sense, although that leaves us with a Board which is ultimately responsible for final 
  decisions in DNS policy development, administration of the resulting policy, and 
  oversight of the policy development process...  convenient one-stop shopping, but not 
  exactly a model worth emulating when it comes to providing structural accountability)

> The real focus should therefore be on the way the board exercises that power, and, as part of that focus, on the controls by the multistakeholder community on the Board.
> That is where the "accountability" focus should continue be directed.

  See above.

> Its a great thing to have the governments of the world working in an ICANN committee. Its a bad thing if their requests are not, in a measured and careful way, subjected to the appropriate analysis and balancing with other elements of the multi-stakeholder input. 

  How exactly is such "balancing" to occur if the GAC input is provided to the ICANN 
  Board at the end of the process?  

> Its a bad thing too, if governments feel that genuinely appropriate measures it seeks in the public interest are defeated by special interest in ICANN, forcing them to abandon the GAC and seek better results via re-arranged Internet governance mechanisms.
> 
> Its a terrible thing if GAC requests are not met by a board that is resolute to maintain the whole of ICANN's integrity.
> 
> Its a tragedy if the community has insufficient accountability mechanisms to hold, and to keep the board to a proper accounting of its role in this balancing exercise.

  Do you mean accounting of the Board in its policy development role with respect
  to the consideration of the GAC advice in a balanced manner?  How exactly would
  the community have an accountability mechanism for the ICANN Board in its specific
  role of balancing GAC input in policy development process, when such accountability
  would be ultimately need to be anchored in the same Board which is also providing
  the oversight to the entire policy development process?

Thanks!
/John

Disclaimers:  My views alone.  I have been involved with ICANN from pre-formation 
              to the present times, am an avid supporter of the organization, and 
              provide the remarks above entirely for the purposes of discussion 
              towards strengthening ICANN's ability to perform its mission.