[discuss] Will there be life on 1net after IANA is globalized? (:-)

Wed Mar 12 18:27:37 UTC 2014

Thanks George (and Greg.

These are thoughtful responses and useful references and I have a clearer
idea from these than I have had previously concerning what you at least are
meaning by "multistakeholder" processes and consensus decision making.

I think that an in-depth analysis and debate concerning the applicability of
these essentially engineering based approaches to problem solving to larger
social/political issues having to do with broad governance and policy
matters is warranted and is in fact urgent given the rush to embed MSism as
the preferred policy mode in the Internet Governance sphere.

However, reading the responses and the documents I'm struck by several
unresolved (and perhaps irresolvable) issues with respect to the
transference of the IETF technical decision making processes to these other
areas (and yes, for those who will find the following "tedious" or
"repetitious". these issues still remain unaddressed and in the absence of
an effective rebuttal the proponents of MSism are asking all of us to buy
what is essentially a "pig in a poke" concerning some of the most
significant matters concerning governance in the 21st century.

1.       It is stressed repeatedly in the documents identified that the
issues at hand are technical/engineering issues.  What that means for me at
least is that they are issues where the disagreements such as they are, are
"practical" or "technical" i.e. having to do with identifying the most
efficient/effective results of an agreed upon course of action with the
disagreement being concerned with these courses of action while the overall
outcome and criteria are (taken for granted) as being non-contentious.  In
the broader policy sphere this is not the case.  Matters of disagreement are
generally in terms of desirable outcomes while the means of achieving these
is relatively less contentious and seen as mere matters of administration or
technical implementation.  

2.       The initial framing of the issues to which the IETF/consensus
approach is applied is equally taken as being non-contentious.  The issues
are primarily technical ones with historical and technical antecedents and
thus disputes (including the accommodation of minority/divergent positions)
is undertaken within the context of this pre-existent framing. However, in
the broader "policy" world, the framing of the issue-the establishment of
the context/language/definitions in which the issue is addressed is crucial
to the determination of the outcome including for example framing a
discussion as a discussion about technical details of implementation rather
than matters of fundamental principle based on clear difference of
interest/values and so on.

3.       There is clear commitment in the documents to decisions being made
by those who show up i.e. those who have sufficient interest in the outcome
of the decision to make the effort to participate. However in many/most
policy discussions some at least of those who are crucial to the
effectiveness/legitimacy of the outcome decision may not without
extra-ordinary effort choose or have the opportunity to participate in the
decision-making a decision in the absence of their participation may mean
that the ultimate decision is incapable of being usefully (or
non-conflictually) implemented

4.       It is not clear how the public interest/public good is ensured as
the ultimate framing for the proposed decision process based on what has
been indicated.  The IETF process is designed to optimize for efficiency and
effectiveness of outcomes.  In the policy world efficiency and effectiveness
are only two among several other and necessary criteria including
"legitimacy" (according to whatever criteria are accepted for legitimization
in this sphere); inclusiveness i.e. ensuring that all necessary participants
are party to the decision not simply those who are able or willing to "show
up"; public spiritedness i.e. that participation in the process is guided by
a desire to promote the public good rather than private or localized
interests; transparency i.e. measures to ensure that the process and its
participants were acting in the public interest rather than in support of
private interests; accountability i.e. the means to enforce measures to
ensure transparency, inclusiveness and so on.

5.       Means for responding to deep seated differences in
values/norms/interests which go beyond disagreements as to technical matters
of efficiency and effectiveness.  This not simply a matter of accommodating
"minority" positions since what is a minority in one instance (or time
period) may become a majority in another instance or time period. Rather it
is putting into place the means for managing, accommodating and ultimately
extending the decision framework in a way as to ensure the legitimation of
opposing positions and means for moving forward even in the full recognition
and acceptance of these conflicts.

I'll stop here and again thank you for providing some concrete backup to the
arguments in support of MSism but I am still waiting for you or any of the
other proponents of MSism to address what I consider to be the fundamental
(and in this instance "fatal") differences between technical decision making
a la the IETF and public policy decision making as per the range of issues
which must now or soon be addressed with respect to Internet Governance.

Mike 

From: George Sadowsky [mailto:george.sadowsky at gmail.com] 
Sent: Wednesday, March 12, 2014 5:24 AM
To: Shatan, Gregory S.
Cc: Naresh Ajwani; gurstein michael; discuss at 1net.org
Subject: Re: [discuss] Will there be life on 1net after IANA is globalized?
(:-)

It might be worth looking at Pete Resnick's excellent IETF draft on what
rough consensus means:

            https://tools.ietf.org/html/draft-resnick-on-consensus-02

Some of the discussion refers explicitly to the importance and treatment of
minority opinions.  Although it is written clearly with a technical
framework in mind, it is applicable to a broader set of considerations.

George

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

On Mar 12, 2014, at 2:30 AM, Shatan, Gregory S. <GShatan at ReedSmith.com>
wrote:

Naresh:

Here are my thoughts on and understanding of the process.

I think the "protection" of first resort for any viewpoint is the consensus
process itself.  In a GNSO Working Group (WG), the process of exploration,
deliberation, persuasion and negotiation is fairly deliberate and
painstaking.  The consensus that emerges from the process is often not the
position that any group or groups held coming into the WG, but rather a
synthesis of views as a result of the process.  The ideal consensus result
is full consensus, and most if not all parties in the consensus process need
to move off their initial positions to build consensus (full or rough).  All
the parties in the WG participate in defining the consensus, whether they
end up signing on to it or not.  So the goal of any group is to move the
consensus toward one's own position, while (ideally) moving one's own
position toward the emerging consensus.  In  a sense, the best protection
for a potential "minority view" is not to end up as a minority view, but
rather to end up influencing the consensus so that it resembles that view to
the extent possible, with the result that the consensus is thus acceptable
to the group holding what might otherwise have been a minority view. 

if after the consensus process, a Consensus forms but there are still
parties that disagree with the Consensus, they are entitled to submit a
Minority View, which becomes part of the Preliminary Report of the Working
Group (WG), which is put out for public comment.  Public comments would
typically be submitted by stakeholders in the Minority View position and
those who agree with the Minority View (as well as comments from many other
viewpoints).  The WG will review  and consider the comments, which may cause
the WG to consider revising the consensus if the comments contain new facts
or persuasive argument.  The WG then produces a final report which is again
put up for public comment.  The comments are again reviewed and changes may
be made at this point as well.  The final report is then submitted by the
Working Group to the GNSO Council, which reviews the final report (including
the minority view(s)) in considering the recommendations made by the WG.
The minority views might persuade the Council to reject or modify a
recommendation.  The recommendations approved by the GNSO Council are passed
on to the ICANN Board, which will adopt the recommendations as policy unless
voted down by a supermajority vote.

At this point, I don't think it is an issue of "ensuring the rights of
minorities."  The group holding the minority view may not be a "minority" in
a sense of the word other than that they supported the losing arguments.
Any group can hold a "minority view."  For any given recommendation, the
minority view might be held by the business community, IP interests, civil
society, registrars or registries (or there may be no minority view at all).
If a group's view is not adopted by the larger group as a policy
recommendation after everything above, that's basically the end of the story
in terms of policy development (though as noted above, the view of the
larger group will likely have changed due to that party's participation in
the process).  The next "protection" will be participating in implementation
oversight to ensure that implementation does not depart from policy (at
least not in a way that Is detrimental to that group's interests).

As far as the question of "minority representation" goes, I am not entirely
clear what you are referencing.  At the beginning of the process there are
no minorities, in the sense of those holding views different from the
majority - simply because no majority has really formed yet.  In a sense,
every stakeholder group is a minority of one.  Certainly, there may be
groups that are closer to each other in viewpoint, but they may or may not
form any kind of majority.

If what you are referring to are "minorities" in a geographic, national,
cultural or ethnic sense, that's a whole different set of questions and
answers, that really has little to do with the issue of holding (or
potentially holding a "minority view" in the consensus process.  This is not
to dismiss the issue of underrepresentation in ICANN or any other entity, or
to be blind to the idea that underrepresented groups may have viewpoints
that are underrepresented or not represented at all (even as "minority
views").  Those are real issues - just not the same issue as how a party in
a consensus process can make sure that the result of that process resembles
their view as closely as possible.  It's also worth noting that similar
views may be held by groups or individuals with widely varied geographic,
national, cultural and ethnic backgrounds, whether or not some might be
considered "minorities" in some sense of the word and others not.  Indeed,
one of the valuable results of the consensus process is to discuss and
commingle viewpoints among disparate actors and to arrive at a greater
understanding or ideally a common viewpoint at the end of the process.

Greg Shatan

From: Naresh Ajwani [mailto:ajwaninaresh at gmail.com] 
Sent: Tuesday, March 11, 2014 9:57 PM
To: Shatan, Gregory S.
Cc: George Sadowsky; michael gurstein; discuss at 1net.org
Subject: Re: [discuss] Will there be life on 1net after IANA is globalized?
(:-)

Dear Greg,

".......So, there is no such thing as a "veto" by any particular party - if
they are in the opposition, they are entitled to submit a Minority View, but
they are not entitled to stop a Consensus from being formed...."

Would you please let us know that how this process addresses minority
representation?  

U wud appreciate that democracy is not only about majority or so explained
consensus but ensuring the rights of minorities too.

Regards & best wishes

Naresh Ajwani

On 11 Mar 2014 22:10, "Shatan, Gregory S." <GShatan at reedsmith.com> wrote:

<snip>

And I'm not sure what a Mulstatkeholderist approach can contribute here.  I
don't see that a "consensus" position is either possible nor necessarily
desirable-what kind of consensus position could a Google sign on to in the
case I've just pointed. I for one wouldn't particularly want the range of
options to be considered in the political/policy forum to be subject to a
veto by Google as would presumably be required by a MSist approach with
consensus outputs. Similarly even entering into the MSist context would to
my mind be disempowering in an instance such as this given the depth of
resources-human, financial, political/influential which a Google could toss
at the issue and which would in an enforced MSist (and regrettably it seems
in the broader political contexts as well), be effectively and practically
overwhelming.

<snip>

Michael:

Actually, your presumptions are incorrect.  This is not how
multistakeholderism and consensus actually works, at least not within the
ICANN GNSO.  

First, "consensus" in that context (among others) is actually what some
others call "rough consensus."  The GNSO operates under levels of consensus
(termed Full Consensus (unanimity), Consensus (some opposition), Strong
Support But Significant Opposition, and Divergence (no prevailing view)).
So, there is no such thing as a "veto" by any particular party - if they are
in the opposition, they are entitled to submit a Minority View, but they are
not entitled to stop a Consensus from being formed.  

Second, the primary level on which multistakeholder consensus-building takes
place is the "stakeholder representative" level, not the self-interested
individual level.  While there can certainly be "self-interest" involved,
individuals who look out for the needs of their employer rather than the
stakeholders they represent tend to get "disciplined" by the process (by
other reps of the same stakeholder group, by the stakeholder group
generally, and even by representatives of other stakeholder groups who are
protecting the integrity of the process).  Someone who is clearly advancing
an entity position tends to get push-back.

Third, the multistakeholder process tends to blunt perceived advantages
based on purported "depth of resources."  When business, IP, ISP, registrar,
registry, civil society, ALAC, nonprofit, etc., representatives get on a
call or in a room, the process of stating positions, discussion, negotiation
and attempts to develop consensus (and/or minority views) is really quite
equal - a civil society rep from Morocco has just much of an opportunity to
shape the discussion as an ISP rep from Virginia.  Resources (beyond travel
budgets) really don't get you all that much in the MS process.  (They may
get you more in working around the MS process, which is an argument to
strengthen MSism, not to weaken it.)  Frankly, having been involved in ICANN
for a few years, I think that there is little truth to the idea that private
sector companies generally throw vast resources at ICANN matters.  Entities
for which domain names and the domain name business are central may devote
resources to ICANN matters, but for the private sector generally, this area
gets little attention and few resources.

Given the above, the multistakeholder approach is actually incredibly
empowering.  As  a participant in a number of ICANN working groups, I've
been incredibly impressed by the work ethic, intelligence, mutual respect,
ability to air and influence views and consensus-building energy that is the
hallmark of multistakeholderism done well.  The multistakeholder approach,
in concert with transparency and accountability, actually acts a "check and
balance" system, making it difficult for any one stakeholder group's
positions to dominate, much less the positions of a single stakeholder.  I
think it's the best hope for the voice of disparate groups to influence
policy and practice.

I would urge you to familiarize yourself more with multistakeholderism in
practice at ICANN (and elsewhere) before you jump to conclusions about its
application.

Greg Shatan

From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf
Of michael gurstein
Sent: Friday, March 07, 2014 5:04 PM
To: 'George Sadowsky'; discuss at 1net.org
Subject: Re: [discuss] Will there be life on 1net after IANA is globalized?
(:-)

George, 

A problem with this approach to the "social" is that it fails to recognize
that many/most/all of the issues which would fall into the "social" layer
(and many of those associated with these in other layers as well) are
essentially "political" issues i.e. ones where there are significant
differences not simply of (technical or other) opinion (or which could be
easily resolvable through some sort of consensus building process). Rather
they are issues where there is a distinct difference/conflict  of
values/norms/interests which ultimately have to do with power and who
controls a situation sufficiently to determine how rewards/benefits/outcomes
are distributed.

More or less subtle attempts to "depoliticize" these issues is in fact an
attempt to divert attention away from the very real clash of interests in
these areas. Is my digital identity something that belongs to me along with
all of the data that accrues to that identity or is it a "profile" that
belongs to Google where they can use that as a basis to slice and dice all
the attributable data and then sell it on as a means to
manage/manipulate/market me in the digital marketplace? This isn't a
"technical" question (nor a "social" question whatever that could be) rather
it is a "political" question which could become the basis for mobilization,
political organizing, political contestation (one can presume that Google et
al will not want their "ownership" of my digital identity to be transferred
back to me) and ultimately clashes of political opinion out of which policy
would emerge where the (monopoly) power of the State would of necessity be
used to enforce the distribution/redistribution of benefits/determination of
relative positions and so on. . 

And I'm not sure what a Mulstatkeholderist approach can contribute here.  I
don't see that a "consensus" position is either possible nor necessarily
desirable-what kind of consensus position could a Google sign on to in the
case I've just pointed. I for one wouldn't particularly want the range of
options to be considered in the political/policy forum to be subject to a
veto by Google as would presumably be required by a MSist approach with
consensus outputs. Similarly even entering into the MSist context would to
my mind be disempowering in an instance such as this given the depth of
resources-human, financial, political/influential which a Google could toss
at the issue and which would in an enforced MSist (and regrettably it seems
in the broader political contexts as well), be effectively and practically
overwhelming.

Mike

From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf
Of George Sadowsky
Sent: Friday, March 07, 2014 10:37 AM
To: discuss at 1net.org List
Subject: [discuss] Will there be life on 1net after IANA is globalized? (:-)

All,

Purpose: What topics in Internet governance should 1net focus upon?

Discussion on this list has focused heavily on the future of IANA, as well
as on human rights issues.  Those are certainly appropriate topics for the
Brazil meeting, but if 1net is to have a longer life, then there may well be
other topics included in Internet governance that do merit attention.

Context

I'd like to talk about this more after introducing a couple of diagrams and
some text from a publication forthcoming in I/S: A Journal of Law and Policy
for the Information Society   (www.is-journal.org
<http://www.is-journal.org/> )  It is titled "Internet governance is out
Shared Responsibility," by Vint Cerf, {Patrick Ryan, and Max Senges.  I take
the following from a draft version of the paper, subject to final edits.  In
my view, it's an excellent paper and should be read by anyone involved in
Internet governance discussions.

Among other things, the authors propose a layering of issues in Internet
governance according to their relative position between strictly technical
and strictly social.  A number of such models have been proposed.  One
proposed earlier on this list by Brian Carpenter, and augmented by a set of
his slides, was an extremely good and thorough exposition of this concept.
ISOC has published something similar, using a different approach to
displaying the results.  

The paper proposes adding a social layer to the normal stack of issues, as
in the chart below.  I believe that the specific issues listed are meant to
be examples, because they are certainly not exhaustive of the issues at any
of the four layers.  Of course, many problems in this space do not live
exclusively in just one layer, but 'bleed' somewhat into adjacent layers.

            <image001.png>

            Illustration 1 - Social Layer Added to the Established Layered
Model

                                                 of Internet Governance

The authors state:

"We provide this conceptualization in order to trigger discussion about
which institutions and stakeholder groups should legitimately be involved in
which Internet policy issues. Put differently, we believe that it will be

beneficial to the operation of the whole online ecosystem if the mandates of
institutions are mapped and clarified with regard to their relevance in
steering Internet governance practices and policymaking." 

"Hence, Illustration 2 shows a schematic example of mapping of institutions
with relevant mandates overlaid on the layers of Internet governance.  Here
we show the IGF is positioned in the center as it has no decision-making
mandate itself but is instead, it is positioned to facilitate and moderate
said decision making to take place elsewhere. In Clark's terminology, at the
IGF, we're separating the "tussles" in a forum where they can be analyzed in
workshops and discussion sessions and then brought back to the various other
forums for decisions."

<image002.png>

This approach to defining shared responsibility for Internet governance is
not new.  ICANN has published its view of this, and a extraordinarily good
and thorough presentation of analysis of this type has been made by David
Souter and is well worth reading.  In the above display, national
governments and their various agencies are totally missing, and that seems
to be to be a fundamental flaw, but one that can be easily corrected.  

The space of Internet governance issues

The 1net discussions until now have focused primarily upon Internet naming
and numbering (the logical layer) on the one hand, and human rights issues
with respect to the Internet (the social layer).  This perhaps appropriate
given the announced focus of the Brazil meeting. However, the Brazil meeting
is just one in a number of meetings, and the purple of 1net goes well beyond
that meeting.

However, Internet governance is much more than names and addresses.  And in
fact, in terms of stability of operations, the current use of names and
addresses by Internet users to actually do things using the Internet is
working remarkably well.  On the other had, most of the other examples in
the first chart above, where the Internet is colliding with existing
activities and changing the nature of processes, is not working nearly as
well as we would like.  To be sure, the problems are more difficult, and
require a different set of actors to solve, but that is no reason for not
discussing them.  In fact, there is every reason to address this set of
issues in order to start to solve them.

Consider just the content layer for the moment.

Many of the issues in this layer depend locally upon adequate legislation
and regulation that depends on a balance between freedom for and
restrictions on behavior and actions, both sides of the balance being
supported by social goals.  At the international level, cooperation requires
a minimum of agreement regarding that balance so that international
cooperation among nation governments can take place.  What initiatives might
make it possible to achieve both appropriate structures at the national
level and coordinated structures at the international level to make this
happen.  Do we need an UNCITRAL-type movement to work toward these goals?
Among the issues affected are:

            - Addressing cybercrime activities effectively

            - Understanding and ameliorating the spam situation

            - ISP liability issues for content stored and/or transmitted

            - Consumer protection

            - Electronic document status (contracts, etc.)

            - Regulatory and legislative environment -- effects on Internet
access and pricing

            - Competition policy within country and internationally

            - Policy/support for community services

            - Culture with respect to private data of individuals (tracking,
advertising, etc.) 

            - Intellectual property rights

I suspect that most everyone on this list can expand it with their own issue
of importance. 

These are areas where intensive national government involvement is
absolutely essential.  Where are these issues being discussed in a way that
has the possibility of dramatically improving these situations?  Does the
1net list have any claim to, or responsibility for, addressing this area?
It certainly is a part of Internet governance? 

Bertrand de la Chapelle has been discussing the international dimension of
these issues in his cross-boundary jurisdiction project, and he is raising
really important issues and providing insights into the nature of this
problem.  However, as much if not more attention needs to be paid to these
issues at the national level.  Where are national governments being faced
with these issues as a part of their responsibilities.  How can other
sectors assist in making this happen?  Which other actors play a part in
improving things, and is this happening.  How can 1net comment meaningfully
on these issues?

Concluding .

Using the working definition of Internet governance adopted by the WGIG in
2005:

            Internet governance is the development and application

            by Governments, the private sector and civil society, 

            in their respective roles, of shared principles, norms, 

            rules, decision-making procedures, and programmes 

            that shape the evolution and use of the Internet.

How might the discussions on 1net be enlarged in a productive manner to
address some of the issue areas included in the above definition, other than
the ones that have received extensive discussion to date?  Define this as
problem no. 2, if you like, but its really a meta-problem.   The real
problems are the ones listed above.

George

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