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

[Nick Ashton-Hart]

Dear David, thanks for taking the time not just to read my thoughts but to comment so extensively upon them. A few inline comments below.

On 31 Mar 2014, at 00:45, DAVID JOHNSON <davidr.johnson at verizon.net> wrote:

<snip>

> 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.)

Did it? I would argue the opposite - that by having not ICANN, but a WIPO-administered process adjudicate disputes, ICANN chose a mechanism that respects the principle I'm advocating very well. WIPO being, of course, the international custodian of intellectual property.

> 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).

Whether one likes that provision or not, it seems to me that it does at its heart respect the principle as much as possible - after all, national laws do address content in every country and it would be a nonsense for an international custodian like ICANN not to respect the right of courts to make judgments.

> 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).

I would say that's a different point than the one I'm making. I'm not saying that there should be no engagement at the policy level on content - just that IG is not the place for it. 

> 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".

Again, I would say this relates to an entirely different point regarding who makes decisions, not what the decisions should be about. In order to achieve agreement on your first sentence, you first have to agree what the scope of those principles is. If it is content and the network, agreement will be extremely difficult to reach - and, by the way, in an IG policy discussion decisions are not enforceable anyway.


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