[discuss] CircleID post: a way forward on what "Internet Governance" is, and is not

[DAVID JOHNSON]

Nick -- I am very sympathetic to the distinction you are trying to establish.
But we have to bear in mind that in all cases -- regulating technology, Internet Governance (by whatever definition) and "public policy", what is being regulated (governed) are actions taken by people.

In that light, the key questions are (1) what means are used to govern and (2) who decides on the ends to which these means are put?

ICANN crossed your "red line" from the outset by establishing the UDRP -- using transfer of a domain name to enforce rules against using domain name registrations to engage in "cybersquatting" (extortion of clueless brand holders) -- on the ground that such activities had no reasonable justification. (Notably, UDRP does not resolve disputes between legitimate but contending trademark owners.)

Specification 11 of the new gTLD contracts takes another step down this path, contemplating possible suspension of a domain name for, inter alia, copyright infringement and even "violation of any applicable law". This potentially involves the regulation of technological affordances for the purposes of controlling content. Presumably under pressure from the GAC (rather than based on consensus in a multi-stakeholder process).

What I take Multi-Stakeholderism to mean, most fundamentally, is that governments are not the sole legitimate source of rules that govern online activity of the people who might be "governed". Invocation of a rule to protect technology from policy oriented governance cannot work -- because the technology itself can be used to govern and there are many who want to use it for this purpose (ranging from governments to the Facebook TOS).

So I think what a conference of the future of "internet governance" has to consider is whether there are principles that should constrain the use of the governance of technology to govern the behavior of people online.
MS has the advantage of opening up the process so those who are affected by the rules might show up, via proxies, to have a say.
The "consensus" model has the advantage of giving minority views a kind of veto power -- leading to "subsidiarity" -- failure to agree at the global level pushes the problem to a more "local" context.
But the most fundamental principle should be what I would call "congruence" -- a high level of overlap between the group of people affected by a rule and those about whom the rule-making process "cares".

The objection to (presumptive) US control over the ICANN rule making process was really a "congruence" objection. The USG presumably cares most about US citizens and institutions and yet makes (or constrains) rules that affect a global population.
The MS claim that governments should not be in control, in a top down hierarchical manner, is much the same, based on the view that governments are not "congruent" -- don't reliably care mostly about the interests of those their rules affect. An open consensus based process seems to do better at that -- at least as long as the rules (including those enforced by contract) really do reflect the views of all those affected.

This is complicated by the fact that the very term "subsidiarity" no longer applies if we are transitioning from a hierarchical system of governance to a more networked complex system -- one in which all parts are connected but no one is in charge.
What that new (and more adaptable) system requires is a principle on which every interconnected component can decide whether and on what conditions to defer to the decisions made by another part of the system.
This is a little like the "choice of law" question that courts ideally answer by asking not just who has the strongest interest but also who has the strongest claim to speak on behalf of the affected community.
If the Brazil meeting, instead of saying that rules re technology may never be used to regulate bad contract, were to say that any use of technology to govern people's activities online must (1) acknowledge the universal interest in preserving the free flow of information online, and (2) be judged by the standard of "congruence" (mostly affecting only those whose values and interests the decision-making process actually and genuinely cares about, we would have made substantial progress.

drj
On Mar 29, 2014, at 1:38 PM, Nick Ashton-Hart wrote:

> Dear all,
> 
> In case it is of interest, there's a CircleID post from me on why we need to have more clarity on what is, and is not, within the scope of "Internet Governance."  I propose a way to resolve the vagueness that has bedeviled this term for 10 years built around the concept that the data that is carried by the Internet and the network that carries that data are separate things, and that data should not be a part of "Internet Governance" because it is dealt with in many other venues.
> 
> I hope it is of interest. It is on the front page at the moment but the direct link is http://www.circleid.com/posts/20140328_internet_governance_what_does_it_mean_anyway/. 
> -- 
> Regards,
>  
> Nick Ashton-Hart
> Geneva Representative
> Computer & Communications Industry Association (CCIA)
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