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

[John Curran]

On Jan 29, 2014, at 3:20 AM, Jeanette Hofmann <jeanette at wzb.eu> wrote:

> 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).
'"
It's a good summary, although I would have rephrased it slightly: 

"Without broad consent among many governments, effective public 
policies/regulations for the Internet are very difficult."

> 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.

Correct - in fact, there is some value in the diversity of regulation efforts 
undertaken on national or regional basis, in that those efforts which enjoy 
support of the public, and pose reasonable and proportionate constraints 
necessary for meeting public policy goals may effectively provide a blueprint 
for adoption of similar efforts in other jurisdictions and produce broad 
consensus after the fact.  I will point to the same example (European data 
regulation) as a success in this area, due to a reasonably balanced approach 
to a clear public policy matter.  

> 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.

Consensus is definitely is not required for introduction of legislation to regulate
the Internet, but then again, your examples are both efforts that failed, implying 
that national measures may not be very successful in the end when compared with those 
with broad government consensus (such as EU measures) 

>  And it is somewhat unlikely that governments limit themselves to high level principles when it concerns issues they really care about.

There's a balance here: governments are quite unlikely to limit themselves to high
level principles, but then they risk being overtaken by technological change.  If
the issues that they really care about are _public policy issues_, shouldn't those
issues be able to be expressed in terms of principles?  For example, data associated 
with a given person is entitled to protection, regardless if it is maintained in a 
file cabinet, index cards, corporate database, or in the "cloud"; principles that 
require such protections are timeless and enjoy far more attention than pages of 
arcane regulation of appropriate web browser behavior (particularly now that the 
web browser is on my mobile phone, my television, my tablet, in the lobby kiosk,
in my taxi cab, and embedded in my automobile, my refrigerator, etc. ...) 

> 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 :-)

We were discussing the role of governments in Internet governance, and I was simply
trying to point out that there are _multiple_ roles involved, and furthermore, that
the traditional top-down regulatory approach may not be as successful as a more 
collaborative approach which still acknowledges the role of governments to determine
public policy obligations, but also accepts the reality that the Internet is global
in nature and therefore difficult to effectively regulate via national legislation.

In short, the Internet community needs to encourage governments to participate in 
Internet technical coordination bodies (so as to maintain awareness of potential areas 
of intersection with the public policy), and to encourage expression public policy goals 
in terms of high-level principles so that compliance with the intent can be more readily
achieved in a durable fashion.  Governments need to consider the tradeoffs in their
regulatory efforts, and in particular the improved potential for success that comes 
from specification of higher-level principles and from working with other governments.

Thanks for your comments - very helpful to the discussion!
/John

Disclaimers  My views alone. No governments were harmed in the making of this email.