[governance] Ideas that this mailing list has agreed to

[Hans Klein]

The choice between "social control" and "political oversight" is addressed 
by the hierarchical model of institutional design.

At a lower level, decisions are made by "social control". This is 
decision-making by stakeholders (e.g. the ICANN board.)  It is largely 
technical decision-making.

At a higher level is political oversight. This is decision-making by 
representatives of the people (ideally elected governments.)  It is 
values-based decision-making.

Most decisions are technical and are made at the lower level.  But in some 
rare decisions, values may be at stake that exceed the normal Internet 
technical issues. These are political decisions and require political 
oversight.

For example, look at the .XXX decision.  To the technocrats in ICANN 
(including us civil society groups!) .XXX was largely a technical decision.

But the values at stake went way beyond technical decision-making.  They 
were political values: the formal granting of recognition to a 
controversial kind of content.  Regardless of how anyone feels about that 
content, we might nonetheless agree that the .XXX decision was 1) a public 
decision that 2) touched on important values.

Such decisions are not technical Internet decisions. They are political, 
and they are appropriately addressed in political forums.  We stakeholders 
cannot legitimately claim exclusive authority to make such public decisions.

(The US unilateral intervention over .XXX was problematic too.  But the 
original .XXX decision revealed a real deficit in ICANN's legitimacy that 
cried out for some kind of political oversight.)

In terms of institutional design, the solution is a tiered institution.  It 
allows for both technical and political decisions, one above the 
other.  Importantly, it keeps them separate.  At the lower level, the 
technical decision-making body (e.g. ICANN Board) is continuously 
active.  At the higher level, the political oversight body (e.g. Council) 
is only active by exception. (The INTELSAT treaty, cited earlier, defined 
such a tiered model.)

Today, ICANN does have a de facto tiered model.  However, the US is the 
sole political overseer.  Political oversight should continue, but it needs 
to be internationalized.

Of course, that raises a burning practical question: can a tiered model 
protect ICANN from meddling by high-level political authorities?  I.e. can 
we prevent the proactive injection of values into technical decisions?

I think we can.

The solution to meddling is the rule of law.  Political oversight should be 
*constrained* by law/treaty.  For instance, it could be restricted to only 
having veto power.  Hopefully, such legal constraints can prevent any abuse 
of power.

But political oversight must be there.  The *people* must have a veto over 
the *experts*.

Political oversight also ensures good process at the lower level.  It can 
prevent capture.  Should some stakeholders capture ICANN by re-writing its 
bylaws to eliminate other stakeholders, political oversight would 
*hopefully* intervene to prevent such a manifest injustice. ;-)

Here, the history of US political oversight is mixed.  In 1998 the US 
prevented business and technical groups from immediately capturing 
ICANN.  The US required balanced representation on the board.

In 2002 the US did allow capture of the ICANN board; user representatives 
were eliminated.  But the US dropped the idea of privatizing 
ICANN.  Privatizing a captured ICANN would be a disaster.

In summary,  ICANN needs two tiers of oversight:
1. lower-level "social control" by stakeholders making on-going technical 
decisions
2. higher-level "political oversight" by representative institutions who 
can veto political decisions and who can prevent capture.

Hans








At 11:02 AM 11/9/2005, Raul Echeberria wrote:
>Hans Klein wrote:
>
> >I offer here a conceptual distinction that may clarify the idea of
> >"political oversight."
> >ICANN need political oversight by *representative* institutions.  But at
> >the global level that is problematic. The only two candidates are
> >governments and global elections.
> >
> >Explanation:
> >
> >ICANN exercises public powers: it makes rules for firms and for
> >individuals.  It is a regulator.
> >
> >As a regulator, it needs political oversight.  ICANN's exercise of public
> >power must be legitimate.
> >
> >
> >
>I agree with the second, but not necesarily with the first assertion,
>and that is exactly one of the major points in this debate.
>Could oversight be substituted by "social control" ?
>If the current structures were improved to allow a much better
>participation of all the stakeholders, also including governments, you
>don't think that it could work well without specific oversight?
>This is what seems most exciting to me, the possiility of seriously
>develop new ways of governance.
>
>Raúl
>
>
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