[governance] First Draft of Statement on US CommerceDepartment/GAC chair intervention

[Avri Doria]

On 18 aug 2005, at 19.16, Milton Mueller wrote:

>
>>>> Avri Doria <avri at acm.org> 08/18/05 5:43 PM >>>
>>>>
>> The indication is that this is against the rules.
>>
>
> The GAC/DoC intervention did not follow defined procedures for  
> offering
> policy advice. You could call that a break in the rules.

I would call that an omission to submit material information that  
would have affected the decision.  That being the case they should  
probably have little success in taking recourse to the  
reconsideration process, but I don't think they would be stopped from  
doing so.

Now, if they were to invoke the reconsideration process on the  
original decision and the Board reconsidered on that basis, there  
would be reason for protesting that decision.  But this has not  
happened.  As far as i can tell they are not even asking for a formal  
reconsideration of the original.


>
> But the more important point is that it represents an arbitrary and
> politically motivated deviation from what ICANN said its process would
> be.

At the moment, all I see the Board doing is being willing to listen  
before they negotiate a contract.

> ICANN laid out its TLD RFP, application and approval process in
> October 2003. Everybody planned according to those procedures. Now  
> it's
> throwing them aside. That's bad. .net was another example (see  
> below) -
> apparently you understood the significance of that case.


I don't see them throwing these out yet.  What I saw in the .net was  
that they did not give enough time or consideration to fully informed  
public opinion.  In this case they are listening to the first set of  
comments to come in.  Personally I don't agree with these comments,  
but I don't see that listening to them is in any sense wrong.  I hope  
they listen to all comments.

>
> ICANN probably has the legal authority to not move forward with
> finalization of the contract, but you can definitely expect a lawsuit
> from ICM Registry if they turn them down on reconsideration, and at  
> the
> point there will be a long and interesting dialogue about what rules
> were broken or not.

While one possible outcome might be reconsideration of the contract,  
another might be just reconsideration of aspects of the contract.  I  
don't think we have enough visibility (and this is another possible  
problem) into the contract process to know what the reconsideration  
might consist of and the degree to which it will happen.

>
>
>> Also if I understand correctly, and i admit i might not,
>> they are not specifically asking for the decision to be rescinded
>> just for time before negotiating the contract.  Now, i can see how
>> this might amount to the essentially the same thing, but not
>> necessarily.
>>
>
> I think you understand that correctly. And I am saying, for civil
> society to remain silent during that period is really, really
> incomprehensible. We have to make known our concerns.

I agree we have to make our concerns known.  But, at the moment, for  
me personally, the major concern is that they may take considerations  
of content into account, not that they may take considerations into  
account based on someone's request that they do so.  And i think that  
this should be focus of any CS intervention.

And while I don't think it material that the USG made a request for  
delay (i would prefer them to do that then to just  wait until it  
reached NTIA and the blocking it), i do consider it material that  
they quote the Family council in doing so.

I also don't think it material that the statement came out with  
temporal proximity.  Even gov't reps discussed it among themselves, i  
don't see that as significant.  We discuss things all the time and  
try to coordinate our activities between various groups.  And if we  
want to be treated with parity, we need to consider their actions in  
the light of our practices, even if they are so much more powerful  
then us.

>
>
>> While i understand the issue when seen from the perspective of undue
>> influence, I know that i generally value flexibilty, and was very
>> happy, e.g., when the ICANN Board and Verisign indicated willingness
>> to renegotiate elements of a signed contract.  and I know that I want
>> the board to be subject to a lot a review before they sign any
>> contract.
>
> Actually you are reinforcing our point.

Well, nice argument technique, but I don't think so.

>
> The reason the VeriSign contract had to be revisited was that ICANN
> very definitely broke its own procedure by not posting the changed
> contract to permit public comment. In other words, it denied the
> community the opportunity to express it views on the changes in  
> the .net
> contract by revising its procedures on the fly. Not to mention the  
> other
> procedural parade of horribles documented by the Register and others
> regarding how the .net process seemed deliberately skewed to favor
> VeriSign.

And this is a case of them NOT denying the community the opportunity  
to express views.

>
> Now if ICANN had somehow DENIED the GAC an opportunity to participate
> in the sTLD approvals by being shifty then I would definitely be on  
> the
> side of GAC in this dispute. But in this case the opposite is  
> happening.
> GAC wants to suspend the rules because it doesn't like the result and
> didn't bother to get engaged when it could.,

But I see a parallel situation.  In the case of .net, discussion  
before the contract was completed was insufficient.  In this case, at  
this point anyway, they seem to be making space for pre.trip-x  
contract discussions.

>
>> In other words I do worry about sending a self-conflicting message:
>> we like it when you reconsider decisions aexcept for when we don't.
>>
>
> I hope you can see now that there is no inconsistency. The revolt
> against the VeriSign .net contract was a revolt against shifting
> procedures that make it impossible for people to know what the  
> rules are
> and how to participate. It is the same issue here.

Well, i remain unconvinced.  As i stated above i saw that as an  
argument against open review before a contract is completed and  
signed.  I see this in the same light.  The difference i see is that  
in that case it had to so with business competitive issues and in  
this case it has to do with social issues.  And I think we should  
have something to say about keeping these social issues out of  
consideration.

I beleive that we should not be focusing on process at this point,  
though we should monitor closely and raise an alarm if and when an  
identifiable process transgression does occur - i.e. one where we can  
comfortably point to the By-laws and say this is the clause you  
violated.  I read through the by-laws again in the context of this  
discussion, and i just don't see it.

I would think it much more effective to make counter arguments to the  
proposal to control the content of TLDs and to counter the influence  
of organizations like the Family Council and other fundamentalist  
religious bodies - be they governments or pressure groups.

Personally, at this point, I cannot subscribe to a statement that  
complains of a process violation i do not see as having happened.  I  
possibly could subscribe to a statement that counters arguments based  
on content restriction, whether that is censorship, meta-censorship,  
or something else entirely is a philosophical debate i would love to  
get into over a beer  - censorship is however a loaded term that  
should be used carefully and with lots of backup information - i am  
not sure we are there yet.


a.
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