[governance] present draft doesnt represent CS position

[Hans Klein]

Thank you, Parminder, for raising very important points.  (The responses 
are also thoughtful and encouraging.)

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.

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.

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:

quote: <<<<<<
Regulatory Capture
ICANN suffers from regulatory capture, mostly to the benefit of US-based 
corporations.  To cite the main episodes:
·       Capture of International Forum on the White Paper (IFWP) 
(1998):  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.
·       Capture of ICANN Board (2002): The same industry and technical 
interests eliminated user representation on the board.  (This remains the 
case today.)
·       Capture of the Internet Society (2002): 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:
         o      Capture of .ORG registry.  This registry is now managed by 
ISOC.
         o      Capture of ICANN’s At Large Advisory Committee (ALAC). 
Nearly 60% of certified user-related organizations in ICANN are chapters of 
ISOC.
·       Capture of .COM by Network Solutions [Verisign]. This US 
corporation has extended its very profitable control of the most popular 
domain name.

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.  (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.)  The goal of bottom-up, 
consensus based policy-making has proven unworkable.

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.

[p. 4. "ICANN Reform: Establishing the Rule of Law"; emphasis added]
 >>>>>>>

So endowing a non-governmental organization with public powers (ordinarily 
reserved to governments) is, to my mind, unwise.

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.

Hans Klein
Internet Governance Project
Internet and Public Policy Project
Georgia Tech





At 09:41 PM 11/7/2005, Ralf Bendrath wrote:
>Parminder wrote:
>(I will also reply to Avri further down in my mail)
>
> > I agree there are no easy answer here. And the notion of legitimacy
> > that you offer - of representation and of deliberation are fine, except
> > that the legitimacy of 'deliberation' can extend to the many functions
> > that CS normally performs but not to actual decisions on public policy
> > which affect the lives of people in many ways. However the
> > 'deliberation' function has many ways of exercising 'soft power' or
> > power by influence on public policy. And we all know of the many ways
> > there are of doing that. And we need to find ways to use this soft
> > power more efficiently.
>I mean deliberation instead of negotiation as a basis for _decision
>making_, not just in the form of advocacy. One mechanism could be e.g. to
>have a "board of trustees" who are nominated in their personal capacity,
>not as representatives for specific cinstituencies, and who act as peers.
>If you have a mix of CS, PS and Government people, you also include
>representation. But as Avri has said, we don't seem to have consensus
>here. It was just for presenting my notion of deliberation.
>
> > But we cannot see legitimacy of 'deliberation' replacing that of
> > 'representation' though necessarily there should be a good and
> > effective interface between two.
>But represenation of what or whom? That is why I am pushing against the
>old nation-states based system of representation. I am sceptical of (many)
>governments. There are also other possible models for representation. The
>ICANN elections tried to do this through regional directors, the CS Bureau
>is composed of representatives (well...) of communities, not territorial
>entities, the WSIS CS Content and Themes Group in the first phase was
>composed of representatives of people who share an interest in same
>issues, ... Why do we need to maintain territoriality as the basis for
>representation here?
>Another argument: The recent German elections were not won or lost over
>the question of ICANN and WSIS, and I am sure this is the case everywhere
>in the world where elections exist. This means: The few people in the
>German government who deal with this can basically do what they want. They
>are bureaucrats serving their own institutional interests, not even
>political appointees. To whom are they accountable?
>
> > 1.    we proceed from known ‘representation’ based governance systems
> > and improve systems of its accountability to its constituents
>... or if we invent new ones.
>
> > ICANN’s conception of who all are to be considered the stakeholders in
> > IG (Internet user community) is not at all acceptable ­ every single
> > person in the world is a stakeholder here. Everyone is impacted by
> > Internet today ­ directly or indirectly, in the present or potentially.
>Absolutely.
>
> > I am only suggesting what the above referred (IG project, and Hans
> > Klein) academic papers suggest. To establish the rule of law
>Agreed. Do we have consensus on this in the caucus, by the way?
>
> > ·         ·       Since the nature and challenges of IG are of an
> > entirely new kind, this oversight body should be a new body created for
> >  this purpose.
>Or created out of the existing bodies? Think of evolution or revolution as
>you prefer.
>
> > This IG public policy and oversight body must be
> > anchored in the UN.
>Why? This would again imply that it is based on the representational model
>of the nation-state, because the UN is still an intergovernmental
>institution, no matter if we get speaking slots at their conferences or
>not. And it would include representation of no-one by a number of
>dictators. BTW it also serves the US propaganda at the moment, which even
>Kofi Annan has tried to fight back - that the UN wants to take over the
>Internet.
>
> > ·         ·       Freedom of expression, privacy, and such basic human
> >  rights should form a part of the framework for making IG public policy
> >  and oversight.
>Not "should" - must! This is agreed upon international law!
>
>On what Avri wrote:
> > We have those who insist on no government external oversight, those who
> > are willing to allow some government over sight as peers to other
> > stakeholders, and those who would hand full political oversight over to
> > governments or inter-governmental organizations.
>Let's see:
>
>- "full political oversight over to governments"
>That would be Parminder, but I think we are finding some common ground
>already...
>
>- "some government over sight as peers to other stakeholders"
>I think many here (let's call them "the WGIG family" - LOL) would accept
>that model. This is what I also could agree on, I think.
>But I am still unsure, I think we need much more imagination here, and not
>be confined by what we think the US can accept. This is not our job, leave
>this to the EU diplomats. What about the visionary power of Civil Society?
>
>- "no government external oversight"
>That model is supported by McTim (and others?). This would be what we
>political scientists call "privatized transnational governance", an
>example being the International Olympic Committee. And this example also
>does not leave me with too much trust in a model where the people who run
>a system and earn money with it (the network operators) do their own
>oversight. Unless there is a market solution for the root server, I can't
>really do anything about their decisions as a normal user. And Parminder
>is right: The people who are not online - "incommunicado", as they say in
>Dutch ;-) - have to be represented, too.
>
>Should we have a humming test? Or keep discussing until Sunday?
>
>By the way: Do we talk about a narrow or broad understanding of public
>policy issues here? I am only referring to the ICANN / root server issue.
>In most of the other fields, governments have a large role already - look
>at cybercrime etc.
>
>Best, Ralf
>
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