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

[Milton L Mueller]

Sorry. I have to counter this with a bit more nuanced and accurate information. 

-----Original Message-----
From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf Of Don Blumenthal

> What became the EWG first was recommended by the multistakeholder 
> Whois Review Team, not the Board or the CEO. 

The Whois Review Team was not a bottom-up policy initiative, but a requirement of the Affirmation of Commitments (AoC). The AoC was the product of a bilateral negotiation between the US government and ICANN. The USG, especially its law enforcement agencies, are well-known supporters of maintaining the privacy-deficient status quo in Whois. The AoC required ICANN to "commit to enforcing its existing policy relating to WHOIS." The mere existence of Whois-related material in the AoC is an example of how the tether to the USG involves policy influence, not just broad good governance goals like transparency and accountability.

That being said, the first Whois Review Team did recognize that there was a deadlock on this issue and tried to move things forward in a relatively unbiased way. To its credit, it did not simply parrot the idea that ICANN should stick with its existing policy.  

>I¹ll grant you that the members were appointed, but only for 
>the most part after having responded to an open call for volunteers. 
> I know the members. Particularly with repect to a few of them, any 
> thought that the group is beholden to the CEO because he appointed 
> them just doesn¹t play.

I don't think the group is beholden to the CEO, but I do think that the selections were biased against privacy and individual rights advocates and beholden to interests who want to enhance Whois as a surveillance mechanism. A privacy advocate was added at the last minute in response to criticism. Public comments raised questions about the presence on the EWG of the founder and former president of a firm, Mark Monitor, that makes its living selling Whois-based services to brand owners, and the ICANN Staff member assigned to work with the EWG was someone who used to work for that firm and is viewed by many in the Noncommercial Stakeholders Group as someone routinely biased against their input.  See public comments here: 
http://mm.icann.org/pipermail/input-to-ewg/2013/date.html 

>Sufficiently bottom up?

More to the point, ICANN has a policy development process (the GNSO) with carefully balanced representation of the various stakeholders. If new policy initiatives come not from the GNSO, but from hand-picked groups, the potential for abuse or manipulation should be obvious. If the "top" can create ad hoc policy development groups and control their composition, the whole process can be bypassed.