[discuss] Governmental participation (Was: Problem definition 1, v5)

[Jeanette Hofmann]

My reply comes a bit late, so let me first summarize what you said 
regarding the roles of governments:

Governmental public policies take on two forms:
1. laws, directives, regulations
2. participation in internet technical coordination bodies.

You say that governments should make use of their first roles only 
sparingly because the internet is not easy to regulate to begin with and 
because public regulation would require consent from many governments. 
Without broad consent among many governments, no public 
policies/regulations are possible (not sure you would go that far).

I would be desirable if governments could confine themselves to policies 
in the form of high level principles that can be taken into account by 
technical standard setting bodies.

To carry on with a devil's advocate role:

The internet is not a static thing. On its upper layers but also in the 
operating sytems of smart phones we have seen attempts to rather adapt 
the technical configuration to regulation than having the rules 
reflecting the technology. Content protection, blocking services such as 
skype are cases in point.

I don't see broad consent among governments as a requirement for 
regulation. If that was the case, we would never get any data protection 
regulation established with regard to digital services. What happens 
instead is that jurisdictions with enough economic cloud aim for rules 
that will affect other jurisdictions whether they like it or not. 
European data protection regulation is a recent example.

ACTA, although it failed, is another example of this so-called country 
club approach that attempts to bypass multilateral consensus building by 
gathering a number of like-minded countries regarded as powerful enough 
to set new rules also for the internet. The trade agreements currently 
under negotiation follow similar approaches. Finally, PIPA/SOPA intended 
to introduce national legislation that would have effected all other 
jurisdictions! Thus, consensus among many governments may not be a 
requirement for public regulation. And it is somewhat unlikely that 
governments limit themselves to high level principles when it concerns 
issues they really care about.

What has that to do with the future regulatory framework of ICANN? I 
somehow doubt that governments will buy into  "the internet is too fast 
for you guys, leave it alone unless you all can agree on some high level 
principles that we might take into account if we like them" approach :-)

Jeanette

Am 24.01.14 21:27, schrieb John Curran:
> On Jan 24, 2014, at 9:17 AM, Jeanette Hofmann <jeanette at wzb.eu> wrote:
>
>> GAC traumatization should make us ask what can be learned from this 'architectural' failure.
>
> Indeed.
>
>> Having governments participate as individual experts may work in specific contexts such as the IETF but I don't think it can be generalized. One of the differences between IETF and IG matters is that we the structure we are discussing here is expected to create binding solutions and cannot just delegate the question of acceptance and compliance to the market.
>
> There are associations of private actors that create "effectively binding"
> solutions all the time, and do not require any explicit or unique interface
> with governments, instead governments participate just as any other party in
> the development dialogue (to the extent that they perceive a public interest)
>
> If you've ever used a USB connector, you've benefited from the work of the
> USB Implementors Forum...  everything from connectors to signaling to power
> levels is set by that trade association.  The demands of interoperability
> have made it fairly compelling to aim for very high levels of compatibility
> with their specifications, although there is nothing preventing someone from
> doing otherwise as long as they don't misrepresent consumers or use marks of
> the association.
>
> Similarly, there is a global registry of Internet Protocol addresses (this
> global registry is run by the RIRs and IANA at request of the IETF) and
> jointly coordinated to provide for uniqueness of assignments)  One can
> configure equipment with any IP addresses that you wish (and this does
> happens quite a bit privately in some organizations), but you are likely
> to find it convenient to make use of globally-coordinated IP addresses if
> you wish easy interoperability with others on the Internet.
>
> In general, there are no legally binding obligations to make use of either
> of these systems, but the demands of interoperability (and pressures of
> the marketplace) create the necessary motivation for mutual cooperation.
>
> There may be need for legally-binding obligations to use outputs of trade
> associations, but these should be based on the application of clearly
> recognized public policy principles which are adopted by normal lawmaking
> or regulatory processes.
>
> For example, if there is a rash of fires breaking out because of poorly
> engineered "knock off" USB chargers, a country might decide that it is
> necessary to prevent sale of non-compliant devices (out of public safety
> concerns.)  This is the type of discussion that may involve a wide
> number of parties, including fire safety officials, electronics industry
> folks, etc.  Such a conversation with have little to do with the existing
> technical standards, but instead would end focusing on the public policy
> aspects that might mandate their use, market implications, imputed costs
> to consumers, etc.  Conflation of truly binding outcomes (which should be
> based on public policy requirements determined via traditional national
> lawmaking processes) and things that are just effectively binding (due
> to interoperability pressures) is one of the major contributing factors
> in confusion during Internet governance dialogues.
>
> With respect to the organizations that perform Internet identifier
> coordination (e.g. ICANN, RIRs), I do see value in having government
> engagement mechanisms, but it is in their informational and collaboration
> role; places where governments can be informed of the various coordination
> policy discussions which are underway and allow for mutual consideration
> of potential intersections with public policy mandates.  In some cases,
> individual governments will decide that there may be no action needed
> with respect to a discussions, others they may monitor, or even inform
> of existing mandates and regulations that the community should be aware
> (e.g. Data privacy directives.)  To the extent that there is desire to
> set new _binding_ obligations beyond what is technically necessary for
> interoperability, it is not at all clear that such discussions belong
> in the Internet identifier coordinating organizations (as opposed to
> a matter for traditional lawmaking in each government.)
>
> FYI,
> /John
>
> Disclaimer: My views alone.
>
>
>