[bestbits] RE: [governance] need for regulation ....

[Lee W McKnight]

Parminder, Suresh, friends,

My (too lengthy) comments on the cross-thread discussion of (democratic) multi-stakeholder processes; and alternatives in the present/next phase of (global) Internet governance are offered here.

My main point: all too often, we are leaving out of the discussion of global Internet public policy the contrast with the common practice - and most realistic alternative for detailed sector-specific regulation of global Internet public policy matters - which is industry self-regulation. 

The Milton/Brenden DNSA proposal could be seen as proposing to help the industry, and the world, by establishing a narrowly targetted process insulated from politics, and specifically removed from NTIA oversight.

That could be a sign that the global Internet is growing up and doesn't need baby-sitting as it once did. So to be clear I have nothing against industry self-regulation where it is an effective alternative, including in global Internet governance arenas.

I do not however wish to lose the default preference for truly multi-stakeholder processes wherever they might be established, since they are preferrable in principle.

So  yes 'Industry-led' ICANN could be seen as just another industry self-regulatory body. As direct democracy was tried and found wanting in the very early ICANN days for a global organization - cough Karl Auerbach as the fall guy starred in that show - it appears the best we can hope for is multistakeholder, including democratically elected governments. Since a  classic democratic form involving electoral representation of all us Internet users and creators on a global scale is not -yet? - realistically on the table. 

Therefore, I argue that we live in the best of all possible worlds from a multi-stakeholder Internet governance view, and civil society should only consent to outcomes in Brazil and beyond that further support that model as - the best of all possible alternatives - in the present day and age.

Seriously.  

What we want to ensure is that we multi-stakeholders do not lose the opportunity (to be fooled??) into helping keep the open global Internet up and operating. Since honestly the alternative is to leave it to industry, with government oversight,and the public just invited to leave comments and complaints. THEN the Internet stagnates and becomes just the global multinational tool many of us oppose.

Since the realistic alternative is not global Internet public policy made by (democratic) governments in ascendance as you might prefer, but unfettered Industry (self-) regulation which can expose us all to - probably - worse outcomes and certainly less opportunities for 90% of us on this list to have a say.  (Which is not to say the essentially industry self-regulatory/operating structure of DNSA is not preferrable to leaving NTIA in charge; but that is a discussion for another email.)

Now to the academic/historical justification for those statements:

The Internet "Corporation"  might be conceived of as just a variation on sector-specific regulatory/governance approaches dating back to the midieval guilds - think Hanseatic League - and even earlier times in other cultures.

Not that it was all bad; I understand the Hanseatic League's salt cod was the best. : )  

Essentially, multi-stakeholder Internet governance processes are just a variation on that age-old regulatory theme, with greater transparency and openness to civil society one of its key advantages. 

Multi-stakeholder is not an alternative to democracy, it is a participatory democracy/civil society AND government(s) AND industry self-regulatory toolkit to dupe lots of volunteers to spend countless hours doing - the public good. 

Amongst those volunteers, there are of course many whose day job employers have substantial financial interests in the matters being regulated.  Again, like any industry self-regulatory process, the fact that the folks in the room have various stakes in the game, is a feature, not a bug.

That we all can participate as stakeholders is also a feature and not a bug.  

Yes of course global Internet public policy generally speaking would be - better done in the present era if for example the ITU, or UNCSTD, could more readily shake the historical shackles of a 19th and 20th century treaty organizations.  But if it were easy to really open up the ITU it would have happened already, some of us have been working on it for 3 decades now.

So, if true global IGO's just can't handle, and can't motivate the fools I mean the many many thousands of volunteers which their structures automatically disrespect and treat like midieval serfs who should not be in the room and should certainly not speak if not spoken to - that just won't do to motivate the folks participating in all kinds of global Internet governance processes that keeps the net up and growing. 

Therefore, the present preference for multi-stakeholder processes ideally should be endorsed by everyone as the #1 main outcome of Brazil.

(Yeah some agreement on general principles and endorsement of the Internet Rights and Principles Charter as THE 'Magna' Carta' of our era would be nice; but most important really is an agreement on - processes -  so in that Fadi got it right in framing the meeting.)   

I elaborate (even further) below.

Industry self-regulatory practices continue in specific sectors; for example for obvious reasons - that's where the money/temptation to rip off customers and business partners is - regulating finance involves more regulators than just the 5 federal government regulators involved in oversight of the 'Volcker Rule' in the US. 

As an illustration, in the US financial industry, FINRA regulates broker-dealers. They follow certain best practices:

"Comments will be posted online for all Regulatory Notices that seek comment on a proposal. Posting comments online will make it easier for the public to access and review submissions, and will improve the efficiency with which FINRA maintains, reviews and makes available the comments it receives. Generally, comments will be posted on the FINRA website as they are received." (see: http://www.finra.org/AboutFINRA/) FINRA is authorized by the US Congress but is an industry-organized non-profit. Financial brokers in other nations may be similarly policed by their peers. Obviously, FINRA did not prevent the global finanical melt-down of 2008; but then neither did the US or other government regulatory bodies. And following that meltdown, the US Congress passed new legislation, but again that did not obviate the need for FINRA. FINRA is far from perfect, as brokers or their clients may tell you over drinks; but it more or less works.

Leaving to doctors, lawyers and universities the details of their professional (re-)accreditation is perhaps the most common of the industry/professional self-regulatory practices I am contrasting multi-stakeholder with. Of course there are procedures for patients to complain, and ripped-off investors, and parents and students, that is kind of the point. 

But because of the stakes - money and right to practice - none of these procedures are exactly welcoming to new participants offering to help.

For Internet governance, if you want to try to crack the inter-networking code(s), noone's stopping you - in fact IETF folks will welcome clever newbies/fools who they can off-load work to.

So if we recognize its origins in Internet governance out of IETF necessity and related activities which involved,also of necessity, multiple parties - a more-open, more-transparent  'we do not recognize kings just running code' world we are all now living in:
 
and note the DoC's Green Paper tagline of 'industry-led'; 

we can at least suggest to Parminder that there are far worse alternatives than endorsement of the multi-stakeholder model as the global default for Internet governance, as the number one outcome of Brazil.

In its next phase, multi-stakeholder Internet governance processes clearly have key roles to play, since there are just so many stakeholders, including interested individuals, who might have a better idea on how to do (new) things.

Since we have not been here before. 

Whether those newbies are dipping their intellectual toe into IETF on inter-networking standards; or to other parts of ICANN for other matters, or  to Milton and Brendren's new baby DNSA, it is clear that a lot of what we are talking about is too fast-moving/just wouldn't work if burdened with traditional intergovernmental oversight. 

Anyway, to be frank and realistic, for most of the Internet Governance processes we are talking about and especially those which have international impact, multi-stakeholder is a more inclusive, but also a more flexible and responsive, participatory, self-regulatory, model than FINRA.  

So in other words, and to finally be semi-succinct, if multi-stakeholder Internet governance processes are thought of as the variation on the age-old industry-self-regulatory theme which they are; personally I prefer multi-stakeholder as more inclusive of civil society and individual interests, whether yes the 'guild' of IPR lawyers/interests are also hanging around ICANN, as they have been doing since before its founding. At least we the people can get in the room whether physically or virtually as well, with a right to speak as equals.

Which is Avri's key point. 

And to now conclude, all that is orthoganal to market regulation of firms (cough the Google example) in dominant positions, for which I would not advocate self-regulation, or multi-stakeholder processes, but good old-fashioned governmental competition policy regulation of firms suspected of abusing dominant positions, as in the present government inquiries in India and the EU.   A future global markets authority may be a desirable thing but more plausible is the Indian regulators, and the Chinese, also taking their seats at the big boys table with US and EU authorities, and talking amongst themselves. But that is beyond the scope of what we can reach any level of consensus on in a month, so...let's focus on the targets we might hit.  And in that area of global (and national) Internet public policy, I fully agree with you that governments must have the final authority, as Google can't be asked to police itself given the capitalist imperative. 

But for Brazil, and the broader Internet global public policy agenda circa 2014, the fact that information and telecommunication industries exhibit winner-take-all economics, whether at national or global scale, is just a fact and not something we can develop a coherent new global public policy for. In the next 30 days.  I humbly suggest. 

My...25 cents.

Lee