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Thank you, Parminder, for raising very important points. (The
responses are also thoughtful and encouraging.)<br><br>
I was very active in the early phases of ICANN, from 1997 (during
negotiations over Internet privatization) to about 2002 (elimination of
user representation on the ICANN board.) During WSIS I have, of
course, been less active.<br><br>
The early history of ICANN should weigh heavily on people's assessments
of the feasibility of ICANN reform. Non-governmental governance (a
"privatized" ICANN) is very vulnerable to industry
capture.<br><br>
In the recently-posted "Rule of Law" paper, I tried to give a
warning about the dangers of privatized narrow Internet governance.
The history to date has been downright scary:<br><br>
quote: <<<<<<<br>
<u>Regulatory Capture<br>
</u>ICANN suffers from regulatory capture, mostly to the benefit of
US-based corporations. To cite the main episodes:<br>
· <b>Capture of International Forum
on the White Paper (IFWP) (1998)</b>: The process by which the
Internet community was to design ICANN was captured by powerful industry
and technical stakeholders. They boycotted public meetings and
successfully proposed their own secretly-written bylaws for ICANN. <br>
· <b>Capture of ICANN Board
(2002)</b>: The same industry and technical interests eliminated user
representation on the board. (This remains the case today.)<br>
· <b>Capture of the Internet Society
(2002):</b> In 2002 ISOC revised its bylaws to ensure that the society
would be governed by its largest corporate members. This has led to
two derivative acts of capture:<br>
<x-tab> </x-tab>o
<b>Capture of .ORG registry.</b> This registry is now managed by
ISOC.<br>
<x-tab> </x-tab>o
<b>Capture of ICANN’s At Large Advisory Committee (ALAC).</b> Nearly 60%
of certified user-related organizations in ICANN are chapters of
ISOC.<br>
· <b>Capture of .COM by Network
Solutions [Verisign].</b> This US corporation has extended its very
profitable control of the most popular domain name.<br>
<br>
The goal of legitimate private governance of the Internet has not been
met. Powerful stakeholders are able to bend rules in their favor,
while the influence of users and civil society groups has been
minimized. (<i>In light of this, it is risky for such groups to
endorse the private governance model. To draw on an old parable, it
is like the hens proposing to partner with foxes in guarding the
henhouse.</i>) The goal of bottom-up, consensus based policy-making
has proven unworkable.<br>
<br>
In light of this, the US’s hesitancy to fully privatize ICANN has been
appropriate. To give ICANN independence would definitively pass
public powers to the powerful stakeholders that control ICANN.
<br><br>
[p. 4. "ICANN Reform: Establishing the Rule of Law"; emphasis
added]<br>
>>>>>>><br><br>
So endowing a non-governmental organization with public powers
(ordinarily reserved to governments) is, to my mind, unwise.<br><br>
What the discussion on this list has not focused on so much is the
"constitutionalism" or "rule of law" argument.
That is, we need to create a legal framework that limits the powers of
governance and that protects rights. A number of people on this
list (e.g. Jeanette) have touched on the constitutionalism issue, but I
think it merits more detailed discussion.<br><br>
Hans Klein<br>
Internet Governance Project<br>
Internet and Public Policy Project<br>
Georgia Tech<br><br>
<br><br>
<br><br>
At 09:41 PM 11/7/2005, Ralf Bendrath wrote:<br>
<blockquote type=cite class=cite cite="">Parminder wrote:<br>
(I will also reply to Avri further down in my mail)<br><br>
> I agree there are no easy answer here. And the notion of
legitimacy<br>
> that you offer - of representation and of deliberation are fine,
except<br>
> that the legitimacy of 'deliberation' can extend to the many
functions<br>
> that CS normally performs but not to actual decisions on public
policy<br>
> which affect the lives of people in many ways. However the<br>
> 'deliberation' function has many ways of exercising 'soft power'
or<br>
> power by influence on public policy. And we all know of the many
ways<br>
> there are of doing that. And we need to find ways to use this
soft<br>
> power more efficiently.<br>
I mean deliberation instead of negotiation as a basis for _decision<br>
making_, not just in the form of advocacy. One mechanism could be e.g.
to<br>
have a "board of trustees" who are nominated in their personal
capacity,<br>
not as representatives for specific cinstituencies, and who act as
peers.<br>
If you have a mix of CS, PS and Government people, you also include<br>
representation. But as Avri has said, we don't seem to have
consensus<br>
here. It was just for presenting my notion of deliberation.<br><br>
> But we cannot see legitimacy of 'deliberation' replacing that of
<br>
> 'representation' though necessarily there should be a good and<br>
> effective interface between two.<br>
But represenation of what or whom? That is why I am pushing against
the<br>
old nation-states based system of representation. I am sceptical of
(many)<br>
governments. There are also other possible models for representation.
The<br>
ICANN elections tried to do this through regional directors, the CS
Bureau<br>
is composed of representatives (well...) of communities, not
territorial<br>
entities, the WSIS CS Content and Themes Group in the first phase
was<br>
composed of representatives of people who share an interest in same<br>
issues, ... Why do we need to maintain territoriality as the basis
for<br>
representation here?<br>
Another argument: The recent German elections were not won or lost
over<br>
the question of ICANN and WSIS, and I am sure this is the case
everywhere<br>
in the world where elections exist. This means: The few people in
the<br>
German government who deal with this can basically do what they want.
They<br>
are bureaucrats serving their own institutional interests, not even<br>
political appointees. To whom are they accountable?<br><br>
> 1. we proceed from known ‘representation’ based
governance systems <br>
> and improve systems of its accountability to its constituents<br>
... or if we invent new ones.<br><br>
> ICANN’s conception of who all are to be considered the stakeholders
in<br>
> IG (Internet user community) is not at all acceptable every
single<br>
> person in the world is a stakeholder here. Everyone is impacted
by<br>
> Internet today directly or indirectly, in the present or
potentially.<br>
Absolutely.<br><br>
> I am only suggesting what the above referred (IG project, and Hans
<br>
> Klein) academic papers suggest. To establish the rule of law<br>
Agreed. Do we have consensus on this in the caucus, by the way?<br><br>
> ·
· Since the nature and challenges of
IG are of an <br>
> entirely new kind, this oversight body should be a new body created
for<br>
> this purpose. <br>
Or created out of the existing bodies? Think of evolution or revolution
as<br>
you prefer.<br><br>
> This IG public policy and oversight body must be<br>
> anchored in the UN.<br>
Why? This would again imply that it is based on the representational
model<br>
of the nation-state, because the UN is still an intergovernmental<br>
institution, no matter if we get speaking slots at their conferences
or<br>
not. And it would include representation of no-one by a number of<br>
dictators. BTW it also serves the US propaganda at the moment, which
even<br>
Kofi Annan has tried to fight back - that the UN wants to take over
the<br>
Internet.<br><br>
> ·
· Freedom of expression, privacy, and
such basic human<br>
> rights should form a part of the framework for making IG
public policy<br>
> and oversight.<br>
Not "should" - must! This is agreed upon international
law!<br><br>
On what Avri wrote:<br>
> We have those who insist on no government external oversight, those
who<br>
> are willing to allow some government over sight as peers to other
<br>
> stakeholders, and those who would hand full political oversight over
to<br>
> governments or inter-governmental organizations.<br>
Let's see:<br><br>
- "full political oversight over to governments"<br>
That would be Parminder, but I think we are finding some common
ground<br>
already...<br><br>
- "some government over sight as peers to other
stakeholders"<br>
I think many here (let's call them "the WGIG family" - LOL)
would accept<br>
that model. This is what I also could agree on, I think.<br>
But I am still unsure, I think we need much more imagination here, and
not<br>
be confined by what we think the US can accept. This is not our job,
leave<br>
this to the EU diplomats. What about the visionary power of Civil
Society?<br><br>
- "no government external oversight"<br>
That model is supported by McTim (and others?). This would be what
we<br>
political scientists call "privatized transnational
governance", an<br>
example being the International Olympic Committee. And this example
also<br>
does not leave me with too much trust in a model where the people who
run<br>
a system and earn money with it (the network operators) do their
own<br>
oversight. Unless there is a market solution for the root server, I
can't<br>
really do anything about their decisions as a normal user. And
Parminder<br>
is right: The people who are not online - "incommunicado", as
they say in<br>
Dutch ;-) - have to be represented, too.<br><br>
Should we have a humming test? Or keep discussing until Sunday?<br><br>
By the way: Do we talk about a narrow or broad understanding of
public<br>
policy issues here? I am only referring to the ICANN / root server
issue.<br>
In most of the other fields, governments have a large role already -
look<br>
at cybercrime etc.<br><br>
Best, Ralf<br><br>
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