<html>
<head>
<meta content="text/html; charset=ISO-8859-1"
http-equiv="Content-Type">
</head>
<body bgcolor="#FFFFFF" text="#000000">
John<br>
<br>
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. <br>
<br>
In this regard:<br>
<br>
(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)? <br>
<br>
(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?<br>
<br>
(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.)<br>
<br>
(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....<br>
<br>
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?<br>
<br>
parminder <br>
<br>
<br>
<div class="moz-cite-prefix">On Wednesday 09 October 2013 01:36 PM,
John Curran wrote:<br>
</div>
<blockquote cite="mid:4E7A5057-7F76-4758-8D6D-7EB7F559C802@arin.net"
type="cite">
<meta http-equiv="Content-Type" content="text/html;
charset=ISO-8859-1">
<div>
<div>On Oct 9, 2013, at 12:00 AM, parminder <<a
moz-do-not-send="true"
href="mailto:parminder@itforchange.net">parminder@itforchange.net</a>></div>
<div> wrote:</div>
<br class="Apple-interchange-newline">
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">John,<br>
<br>
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. <br>
<br>
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.
<br>
</font></div>
</blockquote>
<div><br>
</div>
<div>It is not apparent that the theoretical approval of root
changes ever actually resulted</div>
<div>in USG "judgement" being given in any case, and that is a
not a model that you want </div>
<div>to emulate.</div>
<br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">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.
<br>
</font></div>
</blockquote>
<div><br>
</div>
That should be resolved through the globalization and
internationalization of ICANN's</div>
<div>charter, and can be done in a manner that is durable and
beyond revisiting.</div>
<div><br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">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.<br>
</font></div>
</blockquote>
<div><br>
</div>
That's certainly a lot closer to my desire, in that it keeps the
role clear and focused.<br>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
<blockquote type="cite">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.<br>
</blockquote>
<div bgcolor="#FFFFFF" text="#000000">
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">Advising
the IETF, ICANN, RIRs, etc. on proper public policy
mandates and </font>norms </div>
<div bgcolor="#FFFFFF" text="#000000">is very important
and I support such. However, that's not an "oversight"
role, and </div>
<div bgcolor="#FFFFFF" text="#000000">doesn't have to be
conflated with the same body. </div>
<div><font face="Verdana"><br>
</font></div>
</div>
</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">
<blockquote type="cite">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.
<br>
</blockquote>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
</font></div>
<div bgcolor="#FFFFFF" text="#000000">Why can't the
Oversight Board have 24, 40 or 90 organizations
participating, if indeed</div>
<div bgcolor="#FFFFFF" text="#000000">its mission to be
provide oversight? Wouldn't we want nearly
any government, civil</div>
<div bgcolor="#FFFFFF" text="#000000"> society, or technical
organization interested to be able to participate
in reviewing </div>
<div bgcolor="#FFFFFF" text="#000000">ICANN's compliance to
its mandate?</div>
<br>
<blockquote type="cite">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.</blockquote>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
</font></div>
Absolutely.</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
<blockquote type="cite">A global oversight board,
constituted properly, and relatively insulated from
political subversion, will be able to do precisely that.</blockquote>
<blockquote type="cite">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.
</blockquote>
<div bgcolor="#FFFFFF" text="#000000"><br>
</div>
<div bgcolor="#FFFFFF" text="#000000">Oh really? If that's
the case, then the canvass of international law and
public </div>
<div bgcolor="#FFFFFF" text="#000000">policies needs to
get its collective act together if we're expecting the
Internet </div>
<div bgcolor="#FFFFFF" text="#000000">to recognize and
conform to such...</div>
<div bgcolor="#FFFFFF" text="#000000"><br>
</div>
<div bgcolor="#FFFFFF" text="#000000">Note that the Internet
is unlikely to function in the face of multiple
overlapping </div>
<div bgcolor="#FFFFFF" text="#000000">and differing public
policy mandates, and hence it is incumbent to have such </div>
<div bgcolor="#FFFFFF" text="#000000">public policy
directives be as global (or close to global) as
possible. The hard </div>
<div bgcolor="#FFFFFF" text="#000000">work of getting
governments together to accomplish such is quite
independent </div>
<div bgcolor="#FFFFFF" text="#000000">than the relatively
easy goal of getting acceptance of the outcomes of such </div>
<div bgcolor="#FFFFFF" text="#000000">processes. </div>
<div bgcolor="#FFFFFF" text="#000000"><br>
</div>
<div bgcolor="#FFFFFF" text="#000000">In any case, a group
that wishes to keep ICANN apprised of such does not need</div>
<div bgcolor="#FFFFFF" text="#000000">to be an oversight
body to accomplish that goal, and it creates significant
confusion</div>
<div bgcolor="#FFFFFF" text="#000000">in combining roles.</div>
<div bgcolor="#FFFFFF" text="#000000"><br>
</div>
<blockquote type="cite">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.
<br>
</blockquote>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
</font></div>
Agreed again, but the random thoughts of an appointed board
on what they feel may</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">or
may not </font><font face="Verdana">be applicable is </font><span
style="font-family: Verdana; ">not what is needed; what is
need is governments start </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">collectively </span><span style="font-family:
Verdana; ">making </span><span style="font-family: Verdana;
">high-level and clear </span><font face="Verdana">public
policy mandates in this area, and noting </font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">the existence of
such </font><span style="font-family: Verdana; ">when
apprised of policy development going on a specific area, </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">so that it can be </span><span
style="font-family: Verdana; ">brought into the policy
development process as a key input. This is </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">really what </span><span style="font-family:
Verdana; ">should be happening with the GAC (receiving a
report of new policy efforts</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">in ICANN, and looking for any applicable mandate
in their owns) but instead we've got</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">the GAC->ICANN input having its own path </span><span
style="font-family: Verdana; ">into the policy development
process.</span></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">
<div><br>
</div>
<blockquote type="cite">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.</blockquote>
<br>
</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">I'd
like the only decisions out an oversight body to be one of
two things: 1) ICANN</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">is
deficient in its mandate for a given registry (e.g. dns
root) in the following </font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">manner
______ and need to comply within </font><span
style="font-family: Verdana; ">nn months, or 2) the
oversight body has </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">determined that specific registry should be
delegated to a successor, once one is </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">found and transition arrangements have been
made. </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; "><br>
</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">Perhaps it would be good to specify some "use
cases" for your Oversight Board in </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">a </span><span style="font-family: Verdana; ">separate</span><span
style="font-family: Verdana; "> document? I suspect you
have many more such cases for your form </span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">of </span><span style="font-family: Verdana; ">Oversight </span><span
style="font-family: Verdana; ">Board than I...</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; "><br>
</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; ">/John</span></div>
<div bgcolor="#FFFFFF" text="#000000"><span style="font-family:
Verdana; "><br>
</span></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">Disclaimers:
My views alone. I hold myself forth as
highly caffeinated Internet</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana">
workaholic, and am willing to be audited and
reviewed as such...</font></div>
<div bgcolor="#FFFFFF" text="#000000"><font face="Verdana"><br>
</font></div>
</div>
<style type="text/css">
<!--
@page { margin: 2cm }
P { margin-bottom: 0.21cm }
A:link { so-language: zxx }
-->
</style>
</blockquote>
<br>
</body>
</html>