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<DIV dir=ltr align=left><FONT face=Arial color=#0000ff size=2><SPAN
class=804081920-25052009>Ian, </SPAN></FONT></DIV>
<DIV dir=ltr align=left><FONT face=Arial color=#0000ff size=2><SPAN
class=804081920-25052009>Good post. </SPAN></FONT></DIV>
<DIV>
<DIV dir=ltr align=left><SPAN class=579061120-25052009><FONT face=Arial
color=#0000ff size=2>Let me briefly take up your colonialism metaphor, because
it is a strong one. Suppose that the British empire was about to grant
India its "independence" but it had also saddled the Indians with
an incumbent governance structure and an entrenched governing elite
that was not in line with the wishes of the population. If by declaring
independence and gaining recognition as an independent entity the British were
merely delivering the state apparatus into the hands of this illegitimate elite,
would you favor immediate or delayed independence? Perhaps a delay might alter
the conditions of independence, e.g. providing for more democratic processes in
selecting the leaders of the independent government, or a better constitution?
</FONT></SPAN></DIV></DIV><!-- Converted from text/plain format -->
<P><FONT size=2>Milton Mueller<BR>Professor, Syracuse University School of
Information Studies<BR>XS4All Professor, Delft University of
Technology<BR>------------------------------<BR>Internet Governance
Project:<BR><A
href="http://internetgovernance.org/">http://internetgovernance.org</A><BR></FONT></P>
<DIV> </DIV><BR>
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<FONT face=Tahoma size=2><B>From:</B> Ian Peter
[mailto:ian.peter@ianpeter.com] <BR><B>Sent:</B> Monday, May 25, 2009 4:08
PM<BR><B>To:</B> governance@lists.cpsr.org; Willie Currie<BR><B>Subject:</B>
Re: [governance] JPA<BR></FONT><BR></DIV>
<DIV></DIV><FONT size=4><FONT face="Calibri, Verdana, Helvetica, Arial"><SPAN
style="FONT-SIZE: 11pt">When I hear strong and respected voices such as Willie
and APC, Bill Drake and Milton Mueller arguing for a continuation of the JPA
with specific conditions, it is obvious to me that it will be difficult to get
consensus on a statement to the DOC review. <BR><BR>While I am inclined to
agree with many of the comments, I cannot envisage that a continued JPA will
solve any of these issues, and also believe that a continued JPA brings into
question ICANN’s legitimacy in the international arena.<BR><BR>So I don’t
know. We have different opinions here on how to cure the problem. So let me
say the following, speaking absolutely in a personal capacity here.<BR><BR>The
colonial era existed for a long time on the belief that countries and certain
races were not mature enough to self govern. I see strong echoes of
colonialism in suggesting that ICANN cannot solve its problems without the
patronism of the US Government. I echo (as I did in Hyderabad) the
opinion of Mahatma Ghandi to the British when they questioned the timing of an
independence movement– we would rather have our own bad governance that your
good governance.<BR><BR>We have chicken and the egg here - which comes first?
While I think the international treaty is a good idea, to continue a JPA until
we have one lessens the chance of one evolving. <BR><BR>But if people wish,
lets continue and look for middle ground.<BR><BR>I would not argue for an
extended JPA under any conditions. I would be prepared to argue for an
immediate cessation of the JPA subject to ICANN agreeing to (taking up APC’s
points)<BR><BR> - abolish the GAC and have governments either
participate as a stakeholder directly in ICANN structures e.g. the Board, GNSO
etc just as other stakeholders do or specify the role of governments in
managing critical internet resources through an international
treaty<BR></SPAN></FONT></FONT>
<BLOCKQUOTE><FONT size=4><FONT
face="Calibri, Verdana, Helvetica, Arial"><SPAN style="FONT-SIZE: 11pt">-
separate the ICANN global governance regime from national governance e.g.
ccTLDs which should be handled at national level with suggested guidelines
on how to go about this (multi-stakeholder principle, WSIS principles etc)
<BR></SPAN></FONT></FONT></BLOCKQUOTE>
<UL>
<LI><FONT size=4><FONT face="Calibri, Verdana, Helvetica, Arial"><SPAN
style="FONT-SIZE: 11pt">an international treaty to govern the management of
critical internet resources should be entered into between governments in
consultation with the private sector and civil society (that would set the
principles and broad parameters for ICANN as an independent international
economic regulator but not interfere in its operations)
<BR></SPAN></FONT></FONT></LI></UL><FONT size=4><FONT
face="Calibri, Verdana, Helvetica, Arial"><SPAN
style="FONT-SIZE: 11pt"><BR>(and I would add embedding the principles referred
to below)<BR><BR>Is there a way forward along these lines? To me it would need
to be absolutely clear that continuance of JPA until these arrangements are in
place is not an option. <BR><BR><BR>Ian Peter<BR><BR><BR><BR><BR><BR>On
25/05/09 8:39 PM, "Willie Currie" <wcurrie@apc.org>
wrote:<BR><BR></SPAN></FONT></FONT>
<BLOCKQUOTE><FONT size=4><FONT
face="Calibri, Verdana, Helvetica, Arial"><SPAN style="FONT-SIZE: 11pt">Hi
Ian <BR><BR>In APC we are exploring whether to make a submission on the JPA
expiry on the following lines:<BR><BR>Q1: change the principle 'private' to
'multi-stakeholder' and propose WSIS principles <BR>Q2 say the ICANN model
is flawed as it allows for arbitrary interventions by the GAC to override
its decision-making processess as in the .xxx case, does not in its
decision-making processes comply with the standards of an economic
regulator, confuses public policy regulation with commercial activities,
lacks proper accountability whether internal or external, lacks full
international legitimacy. ICANN can be internationalised as an economic
regulator for the DNS and the JPA allowed to expire after the following
steps:<BR>- abolish the GAC and have governments either participate as a
stakeholder directly in ICANN structures e.g. the Board, GNSO etc just as
other stakeholders do or specify the role of governments in managing
critical internet resources through an international treaty<BR>- separate
the ICANN global governance regime from national governance e.g. ccTLDs
which should be handled at national level with suggested guidelines on how
to go about this (multi-stakeholder principle,WSIS principles etc) <BR>- an
international treaty to govern the management of critical internet resources
should be entered into between governments in consultation with the private
sector and civil society (that would set the principles and broad parameters
for ICANN as an independent international economic regulator but not
interfere in its operations) <BR>Qs3,4 & 5: recognise that ICANN has
made progress on meeting some of these steps but they are not sufficient in
themselves as the overall problems outlined in Q2 have not been met and
can't be met within the current governance arrangments for ICANN.<BR>Q6:
say therefore that the USG cannot let the JPA expire until
theconditions outlined under Q2 have been met. <BR><BR>This conclusion is
somewhat surprising for us to reach as we have argued against the unilateral
control of ICANN by one government. We have also been hesitant about arguing
for an international treaty but feel the sooner we face up to this as a
reality the better. We are worried about a black swan blindsiding the system
of managing critical internet resources to the detriment of the internet as
a whole and lack confidence in letting ICANN go without there being a
legitimate accountability mechanism in place. <BR><BR>Willie<BR><BR><BR>Ian
Peter wrote: <BR></SPAN></FONT></FONT>
<BLOCKQUOTE><FONT size=4><FONT
face="Calibri, Verdana, Helvetica, Arial"><SPAN
style="FONT-SIZE: 11pt">JPA <BR></SPAN></FONT></FONT><FONT size=5><FONT
face="Times New Roman"><SPAN
style="FONT-SIZE: 12pt"></SPAN></FONT></FONT><FONT size=4><FONT
face="Calibri, Verdana, Helvetica, Arial"><SPAN
style="FONT-SIZE: 11pt"><BR></SPAN></FONT></FONT>
<BLOCKQUOTE><FONT size=5><FONT face="Times New Roman"><SPAN
style="FONT-SIZE: 12pt"><BR>There have been suggestions on the list we
should comment on the JPA – which I think would be a good idea. Below is
DOC’s call for comments with some suggested IGC responses in CAPS. We
have until June 8 so we probably need to get something decided fairly
quickly if we are to respond.<BR> <BR>Any suggestions or thoughts?
One thing I am suggesting below is that ICANN needs to embed various
principles in its operation. These are in by-laws but that would appear
to be easy to change. Those closer to ICANN might be able to suggest an
appropriate mechanism for this. <BR> <BR> <BR>Ian
Peter<BR> <BR> <BR>REQUEST FOR
COMMENT:<BR> <BR> Given the upcoming expiration of
the current JPA between the <BR>Department of Commerce and ICANN, NTIA
seeks comments regarding the <BR>progress of the transition of the
technical coordination and management <BR>of the Internet DNS to the
private sector, as well as the model of <BR>private sector leadership
and bottom-up policy development which ICANN
<BR>represents.<BR> The questions below are
intended to assist in identifying the <BR>issues and should not be
construed as a limitation on comments that may <BR>be submitted.
Comments that contain references, studies, research, and <BR>other
empirical data that are not widely published should include <BR>copies
of the referenced materials with the submitted
comments.<BR> 1. The DNS White Paper articulated
four principles (i.e., <BR>stability; competition; private, bottom-up
coordination; and <BR>representation) necessary for guiding the
transition to private sector <BR>management of the DNS. Are these still
the appropriate principles? If <BR>so, have these core principles been
effectively integrated into ICANN's <BR>existing processes and
structures?<BR> <BR>IGC BELIEVES THESE PRINCIPLES ARE IMPORTANT AND
WOULD LIKELY TO SEE THEM PERMENANTLY EMBEDDED IN THE CONSTIUTION OF AN
INDEPENDENT ICANN<BR> <BR> 2. The goal of
the JPA process has been to transition the <BR>coordination of DNS
responsibilities, previously performed by the U.S. <BR>Government or on
behalf of the U.S. Government, to the private sector <BR>so as to enable
industry leadership and bottom-up policy making. Is <BR>this still the
most appropriate model to increase competition and <BR>facilitate
international participation in the coordination and <BR>management of
the DNS, bearing in mind the need to maintain the <BR>security and
stability of the DNS? If yes, are the processes and <BR>structures
currently in place at ICANN sufficient to enable industry <BR>leadership
and bottom-up policy making? If not, what is the most <BR>appropriate
model, keeping in mind the need to ensure the stability and <BR>security
of the Internet DNS?<BR> <BR>IGC BELIEVES THAT THE SECURITY OF THE
INTERNET DNS CAN ONLY BE ENSURED BY INTERNATIONAL AND TRANSATIONAL
CO-OPERATION. THAT CO-OPERATION WILL BE ENHANCED BY TRANSITION
BEYOND THE JPA TO A SITUATION WHERE ALL COUNTRIES, AS WELL AS OTHER
STAKEHOLDERS, FEEL THEY HAVE EQUITABLE ARRANGEMENTS FOR
PARTICIPATION<BR> <BR> 3. The original agreement
and the first six amendments to the JPA <BR>contained a series of core
tasks, and in some cases, date-specific <BR>milestones. Have these tasks
been accomplished and have these <BR>milestones been met? If not, what
remains and what steps should be <BR>taken to successfully address
them?<BR> <BR> <BR> 4. In 2006, the
focus on specific milestones was adjusted to a <BR>series of broad
commitments endorsed by the ICANN Board as an annex to the JPA.
<BR>Specifically, ICANN committed to take action on the responsibilities
<BR>set out in the Affirmation of Responsibilities established in ICANN
<BR>Board Resolution 06.71, dated September 25, 2006.\12\ Those
<BR>responsibilities included activities in the following categories:
<BR>security and stability, transparency, accountability, root server
<BR>security and relationships, TLD management, multi-stakeholder model,
<BR>role of governments, IP addressing, corporate responsibility, and
<BR>corporate administrative structure. What steps has ICANN taken to
meet <BR>each of these responsibilities? Have these steps been
successful? If <BR>not, what more could be done to meet the needs of the
community served <BR>in these
areas?<BR> <BR> 5. The current JPA called
for NTIA to conduct a mid-term review. <BR>That review revealed that
ICANN needed to take further steps to <BR>increase institutional
confidence related to long-term stability, <BR>accountability,
responsiveness, continued private sector leadership, <BR>stakeholder
participation, increased contract compliance, and enhanced
<BR>competition. What steps has ICANN taken to address the concerns
<BR>expressed in the mid-term review process? Have these steps been
<BR>successful? If not, what more could be done to meet the needs of the
<BR>community served in these
areas?<BR> <BR> 6. The JPA between the
Department of Commerce and ICANN is an <BR>agreement by mutual consent
to effectuate the transition of the <BR>technical coordination and
management of the Internet DNS in a manner <BR>that ensures the
continued stability and security of the Internet DNS. <BR>Has sufficient
progress been achieved for the transition to take place <BR>by September
30, 2009? If not, what should be done? What criteria <BR>should be used
to make that determination?<BR> <BR>IGC BELIEVES THAT SUFFICIENT
PROGRESS HAS BEEN MADE IN THESE AREAS FOR THIS TRANSITION TO TAKE
PLACE.<BR> <BR> 7. Given the upcoming
expiration of the JPA, are there sufficient <BR>safeguards in place to
ensure the continued security and stability of <BR>the Internet DNS,
private sector leadership, and that all stakeholder <BR>interests are
adequately taken into account? If yes, what are they? Are <BR>these
safeguards mature and robust enough to ensure protection of
<BR>stakeholder interests and the model itself in the future? If no,
what <BR>additional safeguards should be put in place?<BR> <BR>THE
PRINCIPLES OUTLINED ABOVE ARE CONTAINED IN ICANNS BY LAWS. THEY
NEED TO BE EMBEDDED IN SUCH A WAY AS TO ENSURE THEY CANNOT EASILY
BE CHANGED TO EXCLUDE ANY STAKEHOLDER
GROUP.<BR> <BR>8. The JPA provides that before
its termination, NTIA and ICANN are <BR>to collaborate on a DNS Project
Report that will document ICANN's <BR>policies and procedures designed
and developed pursuant to the <BR>agreement. What should be included in
this
report?<BR> <BR> <BR></SPAN></FONT></FONT></BLOCKQUOTE><FONT
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style="FONT-SIZE: 11pt"><BR></SPAN></FONT></FONT><FONT size=5><FONT
face="Times New Roman"><SPAN
style="FONT-SIZE: 12pt"><BR> <BR></SPAN></FONT></FONT></BLOCKQUOTE><FONT
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