[governance] Caucus Position on Oversight? (four decision points)

[Ian Peter]

Great analysis Bill. I am off line for a few hours but two quick comments

#1. I agree with the non-binding forum, which necessitates further
discussion of #2 AND #3 
#4. There is another alternative of course. In reality, the edit function is
totally unnecessary and could be abandoned. I believe that is the CENTR
position. Abandonment of the function in favour of self regulating ccTLDs
(government involvement of course) and some mechanism for GTLDS (which are
hardly a national security matter if USG keeps its .mil). Maybe the
breakthrough here is just to get rid of it and maybe that ought to be part
of the thinking on this.


Ian Peter
Senior Partner
Ian Peter and Associates Pty Ltd
P.O Box 10670  Adelaide St
Brisbane 4000
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Tel +614 1966 7772
Email ian.peter at ianpeter.com
www.ianpeter.com
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www.nethistory.info (Winner, Top100 Sites Award, PCMagazine Spring 2005)

-----Original Message-----
From: governance-bounces at lists.cpsr.org
[mailto:governance-bounces at lists.cpsr.org] On Behalf Of William Drake
Sent: Sunday, 25 September 2005 7:10 PM
To: Governance 
Subject: Re: [governance] Caucus Position on Oversight? (four decision
points)

Hi,

Helpful note Lee.

I think there are four issues on which it'd be helpful to see if we could
agree to say something collectively.  If we can't, then either we fudge
things and take no specific stances, or else pursue the opt-in approach.

> -----Original Message-----
> From: governance-bounces at lists.cpsr.org
> [mailto:governance-bounces at lists.cpsr.org]On Behalf Of Lee McKnight
> Sent: Sunday, September 25, 2005 4:38 AM

[snip]

> 4) Jeanette's note of a few days ago on the forum function I suggest
> can be the start of that piece of the doc;  this keeps things flexible
> and might show to confiused or reluctant governments how new 'oversight'
> functions could spin out of the Fourm if collectively agreed to, eg for
> spam or some other hot-button area, but also reassure those who would
> pay the bills that this is not foreordained to be a massive standing
> thing, in the first instance just a lightweight occasional talk shop;

You're folding together two dimensions here:  a) whether there should be
some constitutional provision for the forum to make binding agreements in
exceptional circumstances when all agree, and b) whether the scope of
substantive issues this should entail includes oversight of core
resources.  Let me separate.

I think a) is somewhat unproblematic, which may be why nobody argued with
its inclusion in the caucus response to the WGIG report.  Or at least, it
is unproblematic with regard to outcomes---since as with any such
instrument everyone would have to agree to sign and ratify for it to take
effect globally, the US or anyone else could block really misguided or
dangerous agreements.  It would be less unproblematic with regard to
process, in that you could get governments demanding that energies be
spent on negotiations toward such agreements, and there is obviously great
reluctance to open the door to that.  Particularly post-WSIS, the idea
that there could be multi-year negotiations involving millions of dollars
of expenditure and person hours of participation on topics where there is
absolutely no prospect of universal consensus does give one pause.  In any
event, I think it is clear that while we included this option in the
caucus statement to try to accommodate all tastes, the reality is that the
industrialized countries probably will not accept any formulation in which
the forum can adopt "hard" instruments, and I suspect the business
community would be implacably opposed.   So possible merits
notwithstanding, it's probably dead, and insisting on it would provide a
nice opening to those who are opposed to any forum for any reason.  Ask
for everything, we could get nothing.

b) is even more obviously unviable.   Every conversation I've had or other
sign I've seen indicate that the industrialized countries and global
business absolutely will not accept a forum that has oversight vis ICANN
or the zone file, full stop.  If Brazil and the other like minded
developing countries insist that this is the only kind of forum they'd be
interested in, the others will say fine, so there's not going to be a
forum.  Unless the developing countries dialed back from that in the
pre-Tunis crisis negotiations, we would all go home and return to the
status quo ante.

Indeed, I've had EU people tell me that they wouldn't even want the forum
to be able to *discuss* or analyze these issues; they want a carve out
from the mandate.  I don't think that makes sense, since substantively the
issues are often intertwined to the point that the forum could not
meaningfully analyze or debate the broader agenda with everything related
to core resources off the table.  The OECD debates, analyzes, and makes
recommendations on these issues and it hasn't had any negative impact, so
I don't see why a forum couldn't do the same if it's not making binding
agreements.

In light of these realities, and in the absence of a really strong case
for doing both in one place, I personally would favor the caucus saying
clearly that binding oversight should not be in the forum.  Our WGIG
report response did not list oversight as a function appropriate for the
forum, and nobody argued against that at the time, but Carlos' response
demonstrates that I shouldn't have assumed everyone was clear on and ok
with the implication.

So I suggest we discuss and see if we can have consensus on this, issue #1.

IF there is separation, the question is then where and how could one
reform oversight.  WGIG Model 2 says that in tandem with a forum there
could be a reform or upgrade of GAC.  In her post, Avri suggests what she
calls an intermediate step, giving GAC the  ability to cause a full review
of any ccTLD.  This *might* be acceptable to the US and business, although
it'd be a hard sell.  However, it would not in any way satisfy the
developing countries, some continental EU countries, or, I suspect, the
EC.  These players simply will not accept that government authority be
limited to an advisory body within a problematic US-based corporation
under US law.  "Like minded" developing countries want an uber-body, forum
+ oversight, binding authority, while in Europe there is interest in
keeping the forum and oversight separate but making GAC an
intergovernmental organization of some sort with the ability to instruct
the ICANN board.  If caucus members agree that the answer to #1 is
separation, then the constitutional form of GAC---remaining within the
ICANN nexus, or being pulled out and given authority over ICANN---would be
issue #2.

Whether reconstituting GAC as an IGO could be sensible depends at least in
part on over which issues specifically GAC could instruct ICANN.  If this
is construed broadly, the US, some other industrialized countries, and
business will never agree.  If it could be narrowly circumscribed, e.g.
making sure that agreed procedures are followed, compelling at least the
review of gTLD decisions, then maybe this would look less threatening to
at least some proponents of the status quo.  I asked NTIA people whether
they could imagine the US ever agreeing to make GAC an IGO if the scope of
its authority were narrowly and precisely circumscribed, and they just
mumbled.  I think this is so far off their radar that they couldn't get
their heads around the question.  Imagine the US would resist to the
bitter end, and would not agree to anything along these lines by Tunis. 
Whether afterwards they'd consider it if it seemed the only way to lower
the heat and avoid net fragmentation, hard to say, but it'd be an awful
hard sell to the White House, Capitol Hill, and business.  Anyway, this is
issue #3, closely intertwined with #2.   My own view is that if #3 could
be precisely bounded, it is at least worth discussing the potential costs
and benefits of #2, but that if the former is impossible the latter is as
well.

> 5) Then, we/you extract from Wolfgang's piece the suggestion of a
> continuation of the trust-based system that we have presently for root
> server management, with the removal of US gov involvement.  Govt rights
> to choose what to do with their ccTLD should be explicitly acknowledged
> again.  That is, the CS position is technical folks who trust each other
> make the thing work and let's leave them alone to the extent possible
> and not mess up the innovation engine. And the techies promise they will
> listen to governments choices for their own ccTLDs, which maybe could be
> put in writing via ICANN, with CS and GAC both involved in monitoring
> but not touching the DNS. Full stop.

Zone file edits are issue #4.  I asked NTIA people about this and they
said internationalization sounds nice but they can't see where you could
put the authority and ensure a *greater* level of security and stability
(which is setting the bar rather high, but they insist that an
*equivalent* level would be impossible to sell in Washington, since why do
anything if it's not going to be better---somewhat lame excuse to avoid
the bother of spending political capital, in my view).  In other words,
unless there's a concrete and operationally viable option, the principle
carries no weight.  I tried out several possibilities on them regarding
where to put it and they just shook their heads. Of course, this was a
discussion of existing bodies;if there was a GAC IGO, that'd be another
option.

I also asked about the alternative posed by Wolfgang and in Milton's
SubCom statement, making a formal declaration to the world that the USG
will be a good custodian of the global public trust and not do anything on
political grounds, and they insisted that they already did this in
Gallagher's "four principles" statement (which, BTW, they said came from
the White House).  I said it didn't seem that anyone took it as such and
they might consider being more explicit, got a mumbled response.  This
might be something to push.  To my knowledge, caucus members are the only
participants to put this compromise solution on the table to date. 
Securing agreement on it would be an undeniable and identifiable CS
contribution to cutting a deal that would bolster our position.  I'd favor
this if nothing else can be agreed, but I suspect that others here would
say it's not enough, the US must relinquish control to an as yet unnamed
entity.

Enough, already.

Best,

Bill




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