[governance] "technical community fails at multistakeholderism". really?

[parminder]

John

This is a very useful conversation and I'd like to continue - which I 
will do, on the side. Meanwhile, I am also looking at points that 
perhaps can fit a possible mutually agreed text that civil society can 
then propose to the technical community as a response to the Montevideo 
statement.

In this regard:

(1) Either you do not want an Oversight Body, whereby, as ICANN is rid 
of US' oversight, existing so called community oversight over ICANN is 
enough, . Is it so? In that case, the question is - what if the ICANN 
Board does something completely absurd and beyond its authority/ role? 
Today, the situation is that they will receive a 'nice' letter from NTIA 
- they know they will receive one, and therefore they tread carefully, 
which is the functioning oversight system at present. Take away the US 
oversight (as we agree we should do) and this system disappears. Are you 
ready to simply have no specific enforceable oversight at all over ICANN 
board after it severs its oversight relationship with the US gov (on 
which we have agreed)?

(2) Or you are ready for an Oversight Body with a  minimum role, which, 
as we seem to agree below, at this stage is to be stated in general 
terms to be exactly as that of the US government at present. In that 
case, we need to agree on some possible way to constitute this Oversight 
Body, by whatever name. I proposed a series of options that keeps it 
relatively free from political subversion but still effective enough to 
be able to carry out the functions it needs to carry out. You suggest 
below that it should be an open body that anyone can join in. Are you 
seriously suggesting that the oversight role should be done say through 
open elists, or whatever way everyone can join a body at will. Can you 
be clearer about what kind of a body are you proposing here? How does it 
function, decide things, communicate its decisions to ICANN, enforces 
them, and so on? And how is this kind of oversight different from what 
ICANN claims is already a set of community accountability processes that 
it has at present. Are you proposing a new set/ process/ body, or 
referring to the processes that already exists?

(3) You seem to suggest below that IANA function/ authority of actual 
root changes could be done by ICANN directly rather than by a body that 
has oversight over it - which currently is the US gov. Well, we can 
agree to that. What this means is that unlike the pre facto oversight/ 
authority over root changes that US gov has at present, in the new 
oversight system is will only be post facto, if a clear violation of 
ICANN's declared processes / mandate can be shown to have happened in 
the process. I can agree to it. (Although as above I still need to 
understand what kind of body can actually carry out such post-facto 
role, and in which manner.)

(4) Whether we agree on some body doing a narrow oversight over ICANN as 
ICANN gets truly globalised, or we just agree to a free-float ICANN with 
no oversight at all, but as an international body, we still need to 
agree on a few things (which I think are rather easier). These are - (a) 
ICANN gets incorporated under international  law (How the statement of 
such law is reached, and under what protocols does then ICANN's 
incorporation proceed will need to be worked, and there are some 
international precedents. However, at present we can agree to the 
principle involved.) (b) ICANN makes a host country agreement with the 
US freeing it from all kinds of US jurisdictions - including those of US 
courts. (c) ICANN is made subject only to international jurisdiction, 
with appeal authority lying with International Court of Justice which 
creates a special bench for Internet matters....

Can we develop a statement incorporating these basic principles with 
some level of specificity regarding the needed institutional changes? 
Would the technical community be sympathetic to such an effort?

parminder


On Wednesday 09 October 2013 01:36 PM, John Curran wrote:
> On Oct 9, 2013, at 12:00 AM, parminder <parminder at itforchange.net 
> <mailto:parminder at itforchange.net>>
>  wrote:
>
>> John,
>>
>> Your principal issue with the Oversight Board we proposed is that - 
>> it seeks to ensure that ICANN works as per international law and 
>> legally developed policies, rather than, as you say is the present 
>> oversight function, merely ensure that ICANN fulfils its mandate 
>> properly. My response is as follows.
>>
>> One, the new IANA contract seeks a public interest justification for 
>> any root modification, and that directly puts IANA authourity holder 
>> - the US government - in a position of making judgements over what 
>> constitutes public interest, which is a much more unclear term, and 
>> open to subjective interpretations, than seeking adherence to 
>> international law and legally developed and communicated 
>> international policies etc. So, if your bottom line is  - dont go 
>> beyond the current US oversight function, I am fine with it. But in 
>> our proposal, we are being clearer (and milder) than the current US 
>> oversight function is.
>
> It is not apparent that the theoretical approval of root changes ever 
> actually resulted
> in USG "judgement" being given in any case, and that is a not a model 
> that you want
> to emulate.
>
>> Second, I understand it is already ICANN's self-defined mandate to 
>> work as per international law. Isnt it. We are just reinforcing it. I 
>> mean, it should be something higher than the ICANN's own authority to 
>> change this particualr mandate. They cant simply mandate themselves 
>> one day not to have to work as per international law.
>
> That should be resolved through the globalization and 
> internationalization of ICANN's
> charter, and can be done in a manner that is durable and beyond 
> revisiting.
>
>> However, I am happy to change the language and role of the mandate of 
>> the proposed oversight board to keep it as close to the current 
>> oversight role as played by the US governemnt at present. we can put 
>> in an agreed text , at a general principle level say, that the role 
>> of the proposed global oversight board will be exactly as played by 
>> the US governemnt at present in its oversight authority. That that 
>> work for you.
>
> That's certainly a lot closer to my desire, in that it keeps the role 
> clear and focused.
>
>> Lastly, you have a objection to the secondary advisory role given to 
>> the same body (the proposed global oversight board) with regard to 
>> IETF and other technical standards bodies. We, the group that 
>> proposed this statement, strongly feel that the time has come that 
>> IETF kind of so called open processes have some kind of an 
>> institutional international advisory board that can regularly bring 
>> in public policy perspectives to such bodies. We are very clear that 
>> this role is indeed strictly advisory. This will also benefit the 
>> technical standards bodies a lot, and so forth.
>
> Advising the IETF, ICANN, RIRs, etc. on proper public policy mandates 
> and norms
> is very important and I support such.  However, that's not an 
> "oversight" role, and
> doesn't have to be conflated with the same body.
>
>> But for the present purpose, to get a consensus, we can entirely 
>> remove the advisory role for such a proposed body from the mandate. 
>> And just have a global oversight board with exactly the same mandate, 
>> role and authourity as is exercised by the UG government with regard 
>> to ICANN/ IANA function. We can just agree to this particular language.
>
> Why can't the Oversight Board have 24, 40 or 90 organizations 
> participating, if indeed
> its mission to be provide oversight?  Wouldn't we want nearly 
> any government, civil
>  society, or technical organization interested to be able to 
> participate in reviewing
> ICANN's compliance to its mandate?
>
>> Meanwhile however I do remember that you have regularly mentioned - 
>> and it appears in ARIN's response to WGEC as well - that technical 
>> community will want clearly laid out international law and public 
>> polices, at a relatively higher/ general level, and would welcome any 
>> effort in this direction.
>
> Absolutely.
>
>> A global oversight board, constituted properly, and relatively 
>> insulated from political subversion, will be able to do precisely that.
>> Otherwise the canvass of international law and pulbic policies can be 
>> too spread out and diffuse to make propoer sense to those invovled 
>> with day to day technical operations pertaining to the Internet. 
>
> Oh really?  If that's the case, then the canvass of international law 
> and public
> policies needs to get its collective act together if we're expecting 
> the Internet
> to recognize and conform to such...
>
> Note that the Internet is unlikely to function in the face of multiple 
> overlapping
> and differing public policy mandates, and hence it is incumbent to 
> have such
> public policy directives be as global (or close to global) as 
> possible. The hard
> work of getting governments together to accomplish such is quite 
> independent
> than the relatively easy goal of getting acceptance of the outcomes of 
> such
> processes.
>
> In any case, a group that wishes to keep ICANN apprised of such does 
> not need
> to be an oversight body to accomplish that goal, and it creates 
> significant confusion
> in combining roles.
>
>> A properly constituted and mandated oversight board would in fact do 
>> what you, and evidently, AIRN has been asking for - clear policy 
>> frameworks, but any policy body staying at more than an arms length 
>> from day to day operations. Such a pulbic policy interface is much 
>> better than say the ad hoc interventions like those done by GAC at 
>> present, completely dependent on the political muscle of the invovled 
>> country(ies) but with no clear documented legal/ policy basis.
>
> Agreed again, but the random thoughts of an appointed board on what 
> they feel may
> or may not be applicable is not what is needed; what is need is 
> governments start
> collectively making high-level and clear public policy mandates in 
> this area, and noting
> the existence of such when apprised of policy development going on a 
> specific area,
> so that it can be brought into the policy development process as a key 
> input.  This is
> really what should be happening with the GAC (receiving a report of 
> new policy efforts
> in ICANN, and looking for any applicable mandate in their owns) but 
> instead we've got
> the GAC->ICANN input having its own path into the policy development 
> process.
>
>> So that this proposed global oversight board does not abuse its 
>> authority, and works within its narrowly circumscribed role, its 
>> decisions should be subject to be appealed to with the Intenrational 
>> Court of Justice, which should set up a special bench for Internet 
>> issues of this kind. All this is easily plausible, given just a 
>> little political will.
>
> I'd like the only decisions out an oversight body to be one of two 
> things: 1) ICANN
> is deficient in its mandate for a given registry (e.g. dns root) in 
> the following
> manner ______ and need to comply within nn months, or 2) the oversight 
> body has
> determined that specific registry should be delegated to a successor, 
> once one is
> found and transition arrangements have been made.
>
> Perhaps it would be good to specify some "use cases" for your 
> Oversight Board in
> a separate document?  I suspect you have many more such cases for your 
> form
> of Oversight Board than I...
>
> /John
>
> Disclaimers:  My views alone.  I hold myself forth as 
> highly caffeinated Internet
>              workaholic, and am willing to be audited and reviewed as 
> such...
>

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