[governance] oversight

Fri Oct 14 09:13:39 EDT 2005

Milton Mueller wrote:
> JH, at risk of provoking you ;-) 

I am as calm as ever :-)

I don't see that you answered my
> question. 
> The question was, "tell me how creating an independent appeals
> 
>>body is different from negotiating some form of internationalized
>>oversight" 

Oh, I thought I did by pointing out that this body would be independent 
and outside of ICANN, and that it would multi-stakeholder.
> 
> 
> I ask this question because one of the important advantages of working
> to get U.S. out rather than add more govenrments in is that it SEEMS to
> avoid the high transactions costs of inter-governmental negotiations and
> associated dangers of assertions of power over the Internet. 

Exactly.

However, it
> may not, as there seems to be a logical flaw in your argument:
> 
> You must tell us where the host country agreement, agreed independent 
> review process, and audit process come from. How are they instituted? 
>  
> If they come from WSIS/international negotiations, then you are really
> arguing for a form of "lightweight internationalization of oversight,"
> as I have been doing. If they come from unilateral U.S. and ICANN
> action, then you are really arguing for the status quo

Actually not. While I agree that some form of official authority is 
needed to delegate authority, the very purpose of delegating political 
power is to change the status quo and thus transform the present form of 
power.
jeanette
> 
> Dr. Milton Mueller
> Syracuse University School of Information Studies
> http://www.digital-convergence.org
> http://www.internetgovernance.org
> 
> 
>>>>Jeanette Hofmann <jeanette at wz-berlin.de> 10/14/05 6:50 AM >>>
> 
> 
> 
> Milton Mueller wrote:
> 
>>Jeanette:
>>Your comments are good, but tell me how creating an independent
> 
> appeals
> 
>>body is different from negotiating some form of internationalized
>>oversight (using the minimalist conception of oversight I have
>>articulated). If the answer is, "this independent appeals body is
>>created by ICANN itself, at its own discretion" then I reject it
>>outright, for reasons I have made clear before. 
> 
> 
> Hi Milton, at the risk of provoking the language police, here a 
> simplified version of what I mean:
> 
> We want are different layers of horizontal control. Taken together they 
> are as effective as some form of vertical accountability by an 
> intergovernmental body would be. The charming feature of our model would
> 
> be that it prevents abuse of political power: no single entity in this 
> structure should have enough authority to enforce policies that are not 
> based on consensus.
> So far, we have thought of roughly three layers or mechanisms of 
> control. (Not sure my categories are really to the point but that is how
> 
> I think about the various forms of control right now):
> A constitutional mechanims -  implemented in a host country agreement
> A regular every day kind of mechanism  - implemented in auditing
> functions
> A mechanism for exceptional cases - an *independent*, 
> *multi-stakeholder* appeals body
> 
> The appeals body would be outside of ICANN, and perhaps it would have to
> 
> be achored somehow somewhere. IIRC Avri's idea is that he should be 
> constituted case by case. This raises the question who would constitute 
> it and choose its members. If anybody knows of relevant working models 
> we could refer to, please tell us.
> 
> jeanette
> 
> 
>>
>>>>>Jeanette Hofmann <jeanette at wz-berlin.de> 10/12/05 9:30 AM >>>
>>
>>>From what I have seen on this list, our positions are not that far 
>>
>>
>>>apart. A compromise seems possible if we ignore the role of
> 
> governments
> 
>>
>>>for a moment and specify instead the forms of controls we regard as 
>>>necessary. It should be possible for this caucus to agree on a system
>>
>>of 
>>
>>
>>>checks and balances that reflects and builds upon our statements in
>>
>>Geneva.
>>
>>
>>>Among the elements we discussed were:
>>>
>>>*ICANN reform with the goal of multi-stakeholder composition
>>>*host country agreement
>>>*independent appeals body
>>>
>>>What we havn't discussed yet is an auditing function that could cover
>>
>>in 
>>
>>
>>>addition to finances also other parts of ICANN's tasks and work.
>>
>>
>>jeanette
>>
>>Milton Mueller wrote:
>>
>>
>>>Avri:
>>>We may agree, but, if there is a difference it may be rooted in the
>>>fact that the term "oversight" denotes very different meanings in our
>>>minds. 
>>>
>>>If you think oversight means a sitting Council of govts that can poke
>>>its fingers into ICANN whenever ICANN or other Internet actors do
>>>something the Council members don't like, then I agree with you that
>>
>>we
>>
>>
>>>don't want it! 
>>>
>>>But one can also think of "oversight" as a set of enforceable rules
>>>regulating ICANN. And for those rules to be truly enforceable, a
>>>significant number of the world's governments have to agree on them.
>>
>>How
>>
>>
>>>else will they come about and obtain any binding authority over ICANN?
>>
>>
>>>If properly defined, these rules can constrain governments just as
>>
>>much
>>
>>
>>>as they constrain ICANN. I.e., they might say that ICANN can be
>>
>>reversed
>>
>>
>>>or checked only according to certain procedures and only in the
>>>following areas: x,y,z. 
>>>
>>>I think we would emphatically agree that the nature of these rules
>>
>>must
>>
>>
>>>be defined by civil society and private sector, not just governments.
>>
>>In
>>
>>
>>>other words, the concept of "oversight" has to be conceived in a way
>>>that makes its purpose _the protection of the rights of the general
>>>population of Internet users and suppliers_, not simply a matter of
>>>giving governments their pound of flesh qua governments. 
>>>
>>>While the immediate threat is national governments, veterans of ICANN
>>>can only repeat their warnings that ICANN itself can be captured, can
>>
>>be
>>
>>
>>>indifferent to users and individual rights, can ignore its own stated
>>>procedures, etc., etc. ICANN now seems nice only by comparison to
>>>traditional intergovernmental processes. And ICANN's "niceness" has
>>
>>been
>>
>>
>>>greatly enhanced by the threat of WSIS, who knows what will happen
>>
>>once
>>
>>
>>>that threat is gone and it is cut loose. So prima facie, there is a
>>
>>need
>>
>>
>>>for ICANN "oversight." 
>>>
>>>
>>>
>>>
>>>>>>Avri Doria <avri at acm.org> 10/11/2005 5:44 PM >>>
>>>
>>>Hi,
>>>
>>>While I support advocating audits and appeals mechanisms I would  
>>>prefer not to call them oversight, but proper ICANN governance.
>>>
>>>I am dead set against the idea that 'all governments in oversight is  
>>>better then one.'  One is hopefully a temporary thing that might pass 
>>>
>>>in time, e.g. with a new US administration and a mature  
>>>multistakeholder ICANN.  'all governments' would, to my mind, be a  
>>>permanent evil.
>>>
>>>a.
>>>
>>>On 11 okt 2005, at 17.13, Milton Mueller wrote:
>>>
>>>
>>>
>>>
>>>>>>>Vittorio Bertola <vb at bertola.eu.org> 10/11/2005 1:54 PM >>>
>>>>>>>
>>>>>I think that our only possible common objective is to have no
>>>>>
>>>>
>>>>government
>>>>
>>>>
>>>>
>>>>
>>>>>in charge of "DNS oversight" (that is, root zone file changes).
>>>>>Otherwise, we will part into those who say "USG oversight isn't
>>>
>>>that
>>>
>>>
>>>
>>>>bad
>>>>
>>>>
>>>>
>>>>
>>>>>in practice" and those who say "USG oversight is unacceptable on a
>>>>>matter of principle", which are two non-reconcilable views.
>>>>>
>>>>
>>>>I think the only solution lies in one's definition of what is
>>>>"oversight." The IGP has addressed this months ago in its paper on
>>>>ICANN. If "oversight" means the kind of undefined, open-ended,  
>>>>arbitrary
>>>>power the US currently holds, then it's no better, and may be worse,
>>>>when multiple governments hold it.
>>>>
>>>>If "oversight" means what it SHOULD mean, namely a kind of audit and
>>>>appeal power that prevents ICANN itself from abusing its authority, 
>>>
>>>
>>>>then
>>>>of course it should be internationalized.
>>>>
>>>>The problem is one of institutional design - creating a limited,
>>>>lawful, rule-bound oversight procedure/authority that cannot devolve
>>>>into the kind of arbitrary top-down oversight council that some
>>>>governments are advocating.
>>>>
>>>>That said, if we can't get that, I think that "oversight by all
>>>>governments" still is much, much better than "oversight by one
>>>>government". And personally, I don't think that the particular
>>>
>>>country
>>>
>>>
>>>
>>>>to which that one government belongs makes too much of a difference:
>>>>governments have different styles and ranges of censorship and  
>>>>control,
>>>>
>>>>but all of them try to exert them.
>>>>
>>>>P.S. To Paul:
>>>>
>>>>
>>>>
>>>>
>>>>>my employer (ISC, operator of F-root) is located in the United
>>>>>
>>>>
>>>>States,
>>>>
>>>>
>>>>
>>>>
>>>>>and yet i can't fathom the law or directive under which USG could
>>>>>successfuly demand or even ask that the servers responding to
>>>>>192.5.5.241 and 2001:500::1035 be reconfigured.  perhaps if martial
>>>>>law were declared first, or something?
>>>>>
>>>>
>>>>There are plenty of technical parameters that are mandated by law,
>>>>usually through generic laws that say that devices of the X type
>>>
>>>have
>>>
>>>
>>>
>>>>to
>>>>abide by technical regulations approved by the Y institute, which in
>>>>turn mandate technicalities. For example, my cell phone is
>>>
>>>configured
>>>
>>>
>>>
>>>>to
>>>>use certain frequencies as per technical regulations ultimately
>>>>deriving
>>>
>>>>from laws. I don't see why there could not be a law that demands to
>>>
>>>a
>>>
>>>
>>>
>>>>given authority (say, ICANN) the authority to determine the root
>>>
>>>zone
>>>
>>>
>>>
>>>>that a DNS server must use to be legal.
>>>>
>>>>Then, of course, you can change the configuration to use a different
>>>>root zone, much like you can alter the frequency of a radio  
>>>>transmitter
>>>>
>>>>and use a prohibited one... but if they get you, you'll be punished.
>>>>-- 
>>>>vb.             [Vittorio Bertola - v.bertola [a]
>>>>bertola.eu.org]<-----
>>>>http://bertola.eu.org/  <- Prima o poi...
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>>>>
>>>
>>>
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>>
>>
> 
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