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<DIV>George,</DIV>
<DIV> </DIV>
<DIV>I must admit I was hoping for more than an interesting discussion here. I
think we have been talking about this for well over a decade.</DIV>
<DIV> </DIV>
<DIV>I think we would achieve broad consensus here for Option 3 – which is
internalisation of the previous IANA processes within ICANN. That itself would
be quite a milestone and a first achievement for 1net.</DIV>
<DIV> </DIV>
<DIV>I also think that that direction would be supported by the EU – it is
multistakeholder – and by many other governments. I also think that USA which
often indicates its support for multistakeholder would, under the weight of such
a multistakholder consensus, eventually feel it necessary to support this
direction. </DIV>
<DIV> </DIV>
<DIV>If we could get to Brazil with a clear forward direction, I believe there
is a strong chance that Brazil could actually have a useful outcome – acceptance
of a direction for solution of the IANA oversight issue. That would be a good
achievement.</DIV>
<DIV> </DIV>
<DIV>So if we wanted to try and achieve that, I wouldn’t try to arrive at any
firm solution as regards GAC involvement at this stage. Indeed, I would try to
throw a statement of direction and principles back at ICANN to figure out the
details. Yes, as you say, the devil is in the details, so I would leave the
devil locked up there for a while until we get a clear consensus and agreement
on a direction. And also discussions on the role of GAC would best involve GAC
so are not so useful here.</DIV>
<DIV> </DIV>
<DIV>Starting from the recent EU declaration, we would need to include security,
stability and a timeframe. And I think your (5) below is a good start for a
brief.</DIV>
<DIV> </DIV>
<DIV>“5. Acceptable solutions for assignment of the IANA root zone function
should meet several criteria: (1) protection of the root zone from political or
other improper interference; (2) integrity, stability, continuity, security and
robustness of the administration of the root zone; (3) widespread
[international] trust by Internet users in the administration of this function;
(4) support of a single unified root zone; and (5) agreement regarding an
accountability mechanism for this function that is broadly accepted as being in
the global public interest.”</DIV>
<DIV> </DIV>
<DIV>I would like to see us aim towards a request, perhaps for adoption in
Brazil, for ICANN to produce an internalised solution meeting the criteria in
(5) (and any others we might like to add) with a timeframe . I would suggest IGF
this September would be good for a report to be developed further. I could see
implementation in that case within 12 months.</DIV>
<DIV> </DIV>
<DIV>Then we are left with one related question – internationalisation of ICANN.
But again the options here have been discussed for some time. But perhaps our
consensus request could also ask ICANN (with a timeframe) to present a solution
to this.</DIV>
<DIV> </DIV>
<DIV>Ian Peter</DIV>
<DIV> </DIV>
<DIV>PS I would also suggest that ICANN utilise an outside independent
consultancy based outside of the USA to conduct this study and consult all
stakeholders and prepare the directions paper, in the interests of expediency
and efficiency.</DIV>
<DIV> </DIV>
<DIV
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<DIV style="FONT: 10pt tahoma">
<DIV><FONT size=3 face=Calibri></FONT> </DIV>
<DIV style="BACKGROUND: #f5f5f5">
<DIV style="font-color: black"><B>From:</B> <A title=george.sadowsky@gmail.com
href="mailto:george.sadowsky@gmail.com">George Sadowsky</A> </DIV>
<DIV><B>Sent:</B> Friday, February 14, 2014 3:30 AM</DIV>
<DIV><B>To:</B> <A title=mueller@syr.edu href="mailto:mueller@syr.edu">Milton L
Mueller</A> ; <A title=discuss@1net.org
href="mailto:discuss@1net.org">mailto:discuss@1net.org</A> </DIV>
<DIV><B>Subject:</B> Re: [discuss] Possible approaches to solving "problem no.
1"</DIV></DIV></DIV>
<DIV> </DIV></DIV>
<DIV
style="FONT-SIZE: small; FONT-FAMILY: 'Calibri'; FONT-WEIGHT: normal; COLOR: #000000; FONT-STYLE: normal; TEXT-DECORATION: none; DISPLAY: inline">Milton,
<DIV> </DIV>
<DIV>Thanks for bringing up your original writing. I looked for it in my
own archives, couldn’t find it, and so depended upon memory. That’s not
always a good option for an aging brain. I apologize for misstating your
position.</DIV>
<DIV> </DIV>
<DIV>I don’t think I’m avoiding coming to grips with any differences. I’m
glad that you were able to sharpen the options as you’ve done below. My
comments were an attempt to describe and delineate the space of possible
solutions, and you have helped to do that.</DIV>
<DIV> </DIV>
<DIV>I am not trying to discredit the denationalization option. It’s clear
that the GAC will stay. However, under your #3 option, will the GAC have any say
whatsoever in any IANA (or son of IANA, or new-name) decisions regarding the
root zone file, and if so, under what terms? The devil is in such
details.
<DIV> </DIV>
<DIV>Milton, you may have thought I was waffling because I was just describing
and delineating what I regarded as the space of alternatives. I wasn’t
waffling; I was trying to invoke discussion of those alternatives. I can
tell you that:</DIV>
<DIV> </DIV>
<DIV>A. I am personally in favor of option 3, and have been for some time.</DIV>
<DIV> </DIV>
<DIV>B. Given the current structure of ICANN, including the GAC, it will be
really important to get any revised denationalized (your words) structure
defined well with respect to the new interrelationships.</DIV>
<DIV> </DIV>
<DIV>Others, however, may disagree, and I did not want to push the discussion,
at that point in time, toward my own preferences.</DIV>
<DIV> </DIV>
<DIV>Oh the other hand, so far most of the comments seem to favor option #3, so
perhaps it’s worth concentrating some discussion on it. I am not a lawyer,
but it’s clear to me (assuming that IANA stays coupled to ICANN) that ICANN’s
legal status changes. Are there anti-trust or competitiveness law
implications? My guess is that there surely are, and from multiple
countries. </DIV>
<DIV> </DIV>
<DIV>What legal structure should such a born-again ICANN take. Here’s
where I was hoping that Jovan’s text below would be interesting to discuss; so
far, no one has picked that up. If #3 is the correct path to take, i.e. if
we know where we want to go. and we know where we are now, what are the feasible
paths that could get us there? I refer back to item 5 in the
problem statement. It is not going to go away:</DIV>
<DIV> </DIV>
<DIV></DIV>
<BLOCKQUOTE type="cite">
<DIV>5. Acceptable solutions for assignment of the IANA root zone function
should meet several criteria: (1) protection of the root zone from political
or other improper interference; (2) integrity, stability, continuity, security
and robustness of the administration of the root zone; (3) widespread
[international] trust by Internet users in the administration of this
function; (4) support of a single unified root zone; and (5) agreement
regarding an accountability mechanism for this function that is broadly
accepted as being in the global public interest. </DIV></BLOCKQUOTE>
<DIV> </DIV>
<DIV>So, where do we go from here? Milton, since you are clearly also in
favor of this option, perhaps you would describe for us your proposed structure
of the post-transition organizations and relationships between them, in
sufficient detail to address the various conflicts and dangers that might arise,
and what paths we might choose to arrive there. That could be a basis for
interesting further discussion on this list.</DIV>
<DIV> </DIV>
<DIV>George</DIV>
<DIV> </DIV>
<DIV>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~</DIV>
<DIV>
<DIV> </DIV>
<DIV>
<DIV>On Feb 12, 2014, at 4:47 PM, Milton L Mueller <<A
href="mailto:mueller@syr.edu">mueller@syr.edu</A>> wrote:</DIV><BR
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<BLOCKQUOTE type="cite">
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<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">George.
You did not quite get the 3 options right. They were:<o:p></o:p></SPAN></P>
<P class=MsoListParagraph
style="TEXT-INDENT: -0.25in; mso-list: l0 level1 lfo1"><!--[if
!supportLists]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"><SPAN
style="mso-list: ignore">1)<SPAN
style="FONT: 7pt 'Times New Roman'">
</SPAN></SPAN></SPAN><!--[endif]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">Unilateral
control by 1 govt (the status quo)<o:p></o:p></SPAN></P>
<P class=MsoListParagraph
style="TEXT-INDENT: -0.25in; mso-list: l0 level1 lfo1"><!--[if
!supportLists]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"><SPAN
style="mso-list: ignore">2)<SPAN
style="FONT: 7pt 'Times New Roman'">
</SPAN></SPAN></SPAN><!--[endif]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">Multilateral
control <o:p></o:p></SPAN></P>
<P class=MsoListParagraph
style="TEXT-INDENT: -0.25in; mso-list: l0 level1 lfo1"><!--[if
!supportLists]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"><SPAN
style="mso-list: ignore">3)<SPAN
style="FONT: 7pt 'Times New Roman'">
</SPAN></SPAN></SPAN><!--[endif]--><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">De-nationalization
of the IANA function; ie., removal of USG control and delegation of it to
ICANN. Note well: this does NOT require exclusion of governments from all
involvement in ICANN.<o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">What
you propose as a solution, “one based upon multistkeholderism,” is actually an
attempt to avoid coming to grips with difference between #2 and #3. By
attempting to do this, you are seriously muddying the waters at a time that we
need absolutely clarity. <o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">EITHER
root zone changes are the responsibility of ICANN, in which case you are
advocating #3 (because ICANN is not an intergovernmental organization) OR
governments have some kind of special authority over root zone changes, in
which case your solution devolves to #2. Please decide which one you are
advocating. I will not let you waffle.<o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">What
you’ve done in an attempt to discredit the de-nationalization option is to
pretend that if we devolve control to ICANN, that governments are excluded
entirely from the process. This is obviously false. Governments currently play
a major role in ICANN, via GAC advice. So one could easily cut the cord to the
USG, vest the IANA function in ICANN fully, and governments would still be
involved. Even if the GAC were dismantled, as some of us favor, it is still
completely possible and indeed desirable for individuals who work for or are
contracted by governments to participate in ICANN. <o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">Some
of us are proposing to reform the role of governments in ICANN to make it
consistent with a truly equal-status, multistakeholder <A
name=_MailEndCompose>governance process. I am really getting tired of hearing,
as a response to these proposals, that “governments are a part of our world
and we can’t ignore or exclude then.” That is either a dishonest or a
completely clueless response. By eliminating special powers for governments
and avoiding intergovernmental control, we are not proposing to completely
exclude governments from the process. We are simply proposing to adhere more
consistently to the MS model and give government agencies and employees the
same status as everyone else. <o:p></o:p></A></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">Milton
Mueller<o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">Professor,
Syracuse University School of Information Studies<o:p></o:p></SPAN></P>
<P class=MsoNormal><A href="http://faculty.ischool.syr.edu/mueller/"><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #0563c1">http://faculty.ischool.syr.edu/mueller/</SPAN></A><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"><o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d"></SPAN> </P>
<DIV>
<P class=MsoNormal><SPAN style="COLOR: #1f497d">></SPAN>The third approach
is in my view equally unrealistic. Governments are <SPAN
style="COLOR: #1f497d"><o:p></o:p></SPAN></P>
<P class=MsoNormal><SPAN
style="FONT-SIZE: 11pt; FONT-FAMILY: 'Calibri','sans-serif'; COLOR: #1f497d">></SPAN>a
part of our world. They have useful and essential functions We
depend upon the creation and evolution of legal structures along with the
administrative and judicial mechanisms that institutes and implement
them. We may be concerned with their inappropriate use of power, but we
can’t deny that they have a place at the table. We are likely, however,
to differ about what that place is and what limitations might be put upon
them.<BR><BR>The second approach, one based upon multistakeholderism, seems
like the only viable and significantly acceptable one. While that choice
may be comforting in terms of its inclusive orientation, the space of
solutions that could be called multistakeholder is vast and multidimensional,
with the only necessary condition for being in the set is that all relevant
stakeholder groups, however defined, have some degree of inclusion into the
process and that no one group has an absolute veto over the activities of the
group. Distributions of power, representation, and decision making
authority all vary, possibly enormously among stakeholder groups. The
very choice of what groups are included and who they include contributes to
the diversity among solutions. (For example, while ICANN correctly
claims to be organized according to a multistakeholder model, in fact it is
organized in accordance with a very specific and well-defined instantiation of
the multistakeholder model.)<BR><BR>So if we are going to talk about
multi-stakeholder approaches to the problem, we will need to differentiate
between a variety of them that might be suggested. Saying that an
approach is a multi-stakeholder approach is not sufficient; it will need to be
characterized in a more definite manner.<BR><BR>Finally, any approach that
will be successful must make the great majority of us comfortable with its
ability to maintain security, stability, and independence of the Internet’s
fundamental naming and addressing systems, and with its ability to withstand
takeover by any special interests. Governments, including the US
government, must be an integral part of that majority if any transition is to
be feasible and ultimately successful. Solutions that do not meet this
criterion, and are not demonstrably better than what we have now, should not
and will not be adopted.<BR><BR><BR><B><U>Incremental
approaches</U></B><BR><BR>Assuming that there are continuity and stability
virtues in minimizing the amount of change that is made, I ask myself: are
there acceptable solutions to the problem that minimize the account of change
needed? In which direction would they go? I personally don’t have
a good answer for that. Perhaps others do.<BR><BR><BR><B><U>Diplomatic
approaches, from Jovan Kurbalija</U></B><BR><BR>In a recent provocative
article, Jovan Kurbalija has outlined a number of scenarios that find
their rationale in established diplomatic behavior. The article,
at:<BR><BR><SPAN
class=apple-tab-span>
</SPAN><A
href="http://www.diplomacy.edu/blog/international-inviolability-root-zone">http://www.diplomacy.edu/blog/international-inviolability-root-zone</A><BR><BR>contains
the following scenarios. I include them here because I think they
represent serious approaches to the issue we’re discussing. They may or
may not be practical.<BR><BR><BR><o:p></o:p></P>
<BLOCKQUOTE style="MARGIN-BOTTOM: 5pt; MARGIN-TOP: 5pt">
<P class=MsoNormal>USE DIPLOMATIC LAW APPROACH TO SOLVE THE POLICY PROBLEM
OF THE ROOT ZONE<BR><BR>The predominantly symbolic relevance of the root
zone issue has created the basis for an analogy with diplomatic law, which
deals with another highly symbolic issue: representation of countries.
It includes diplomatic precedence, the protection of diplomatic buildings,
and the main functions of representation.[3] How can the regulation of
symbolic aspects of diplomatic relations help in regulating the symbolic
aspects of Internet politics? Here are two possibilities:<BR><BR>The first
possibility could be described as a ‘physical’ one, making the server and
root database inviolable, in particular from any national jurisdiction. This
possibility opens the question of where the root server will be
located. It could be located at the UN premises in New York and
Geneva, which would simplify matters, since those entities already enjoy
inviolability, including immunity from any national jurisdiction. Another
option, such as continuing to use the current location would require changes
in the US national law, in order to ensure international inviolability of
the root database. One could also consider assigning root zone file
immunity as part of an ICANN+ arrangement (making ICANN a
quasi-international organisation – discussed further down in the text).
[4]<BR><BR>The second possibility, which is a ‘virtual’ one: the root
database should be assigned inviolabilityper se, wherever it is located.
This solution is based on the analogy with diplomatic law which specifies
that ‘[t]he archives and documents of the mission shall be inviolable at any
time and wherever they may be.’ (i.e. article 24 of the Vienna Convention on
Diplomatic Relations).<BR><BR>In this way, the root database can enjoy
inviolability according to international law. Neither the USA, nor any
other authority, can interfere with the root database without necessary
authorization. This could be the first phase in the policy process, which
could build trust, and prepare for the second phase, which has to deal with
the more difficult question:<BR><BR>WHO WILL HAVE THE RIGHT TO AMEND THE
ROOT DATABASE?<BR><BR>Here we get back to the question of decision-making
process and the status of ICANN. This has been exhaustively discussed,
and it is clear that a workable solution should be based on a high level of
inclusion, transparency, and checks and balances. As a practical solution
for the root zone file, one could think of a double key system, involving a
strengthened ICANN, with a stronger role for the GAC (to some extent
codifying and formalizing what has been happening through the growing
relevance of the GAC). A possible role for a reformed UN Trusteeship council
could also be considered, as one of the actors in this checks and balances
system.<BR><BR>ICANN’s new quasi-international status, for example,
following Swiss laws, could address most of the above-mentioned points.
Shifting ICANN from the national to the international level, would require
ensuring ICANN’s accountability towards consumers, users, and the Internet
industry. Immunity should not be impunity. Again, here we could have a
solution through the interplay between international public law and private
law options.<BR><BR>HOW TO ACHIEVE THE NEW ROOT ZONE ARRANGEMENT?<BR><BR>The
closest analogy is the governance of the Red Cross system. Analogous to the
Geneva conventions in the humanitarian field, ‘a root convention’ would
minimally grant immunity to the root database, and maximally specify how the
root database would be managed. If the adoption of a root zone file
convention would be too complex, one could consider an advisory opinion of
the International Court of Justice, which could recognize the ‘instant’
customary law (practice of the US government of not interfering in
countries' domain names without the consent of these countries). Either a
convention or instant customary law would provide a functional basis for
ICANN, which could be a quasi-international organisation, with a carefully
balanced checks and balances approach, and a prominent role for the GAC.
Such an ICANN+ would both host the root server, and manage the root
database.<BR><BR>There are some other solutions and possibilities. The
bottom line is that there is a solution that could be both practical and
legal. The symbolic issue of the root zone, at least, could be put to rest,
and allow us to spend ‘policy energy’ on more practical and relevant issues.
It could be also be a reasonable compromise.<o:p></o:p></P></BLOCKQUOTE>
<DIV>
<P class=MsoNormal><o:p></o:p> </P></DIV>
<P class=MsoNormal
style="MARGIN-BOTTOM: 12pt"><BR><B><U>Conclusion</U></B><BR><BR>It’s quite
possible that all of the above is a product of too limited thinking, and that
an alternative, more comprehensive and high level approach looking at the
entire Internet ecosystem as a whole might be more fruitful. If so, what
might such an approach be based upon, and why might it look like?
Perhaps on further reflection, and considering possible approaches to it, we
may find that the problem definition is lacking, and needs modification or
amplification. If so, that represented profess of a certain
kind.<BR><BR>I present the above as my thoughts regarding possible approaches,
with a large contribution from Jovan. I admit to not having good answers
to the problem, but I hope that the above material is helpful to starting a
serious discussion. If there is any appetite on the list to continue
this discussion, I, and possibly others, would be interested in your
comments.<BR><BR>Regards,<BR><BR>George<BR><BR><BR><o:p></o:p></P></DIV></DIV></DIV></BLOCKQUOTE></DIV>
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