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

Shatan, Gregory S. GShatan at ReedSmith.com
Wed Mar 12 18:58:13 UTC 2014


I'll answer this in more length later, but I wanted to point out right away that multistakeholderism in the ICANN GNSO relates almost entirely to developing policy recommendations related to gTLDs.  That is what the "Generic Names Supporting Organization" is mandated to do.  I don't think of these as "engineering based approaches" at all.

And this is no "pig in a poke":  there is plenty of available information on the multistakeholder system in effect at the GNSO.  For general information, you might look at:

http://content.netmundial.br/docs/contribs/page:9 (#177 submitted by a cross-community ICANN working group)

More particularly, the working group system is open and transparent - each WG has a wiki, where you can find recordings, transcripts, working documents etc.  Working Group reports are published for public comment by anyone in the world - look at some reports and some public comments.  If you would like - submit a public comment - you are now a part of the process.  Welcome!  If you come to an ICANN meeting (no registration fee), you will see MSism in action.  Can't come?  Everything is available for remote participation.

Frankly, I'm hard pressed to think of anything that is less "in a poke" than the GNSO multistakeholder system.

Indeed, I think that multistakeholderism ICANN is one of the great experiments in disintermediated governance participation by individuals and entities.  While it's not perfect, it's something the Internet community should actually be proud of, rather than viewing it through a cloud of FUD.  When I discovered that I could move from serving on random committees in other organizations that push paper into the ozone, to actually participating in the decision-making process at ICANN, I was first astounded, then delighted, then impressed, and then overworked....  But it is actually quite an amazing thing.

Greg Shatan

Greg Shatan

From: michael gurstein [mailto:gurstein at gmail.com]
Sent: Wednesday, March 12, 2014 2:28 PM
To: 'George Sadowsky'; Shatan, Gregory S.
Cc: 'Naresh Ajwani'; discuss at 1net.org
Subject: RE: [discuss] Will there be life on 1net after IANA is globalized? (:-)

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.


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<mailto: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:


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.



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


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<mailto: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<mailto:GShatan at reedsmith.com>> wrote:
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.


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> [mailto: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<mailto:discuss at 1net.org>
Subject: Re: [discuss] Will there be life on 1net after IANA is globalized? (:-)


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.


From: discuss-bounces at 1net.org<mailto: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<mailto:discuss at 1net.org> List
Subject: [discuss] Will there be life on 1net after IANA is globalized? (:-)


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.


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.


            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."


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.


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