[governance] who does "public policy" then?

[Milton Mueller]

This really thoughtful message by Parminder was originally sent under
the now tiresome header .xxx. igc and igf. I was too rushed to respond 3
days ago but it deserves a response and raises some very important
issues. I am too busy and tired to respond as thoroughly as I should,
however.

>>> parminder at itforchange.net 4/9/2007 3:48 AM >>>
>.xxx discussion has been very useful and is important, and that 
>we also need to think about what IGC wants to do about it. And a 
>forum presenting itself for us to do something is the IGF
consultations.

Here's my first observation. It is also the most important, because
it's actionable:

I wonder whether the IGF powers that be would be amenable to having a
plenary theme on "global public policy for the Internet-- do we need it,
who does it and what is it?" IG does raise policy issues. But the Tunis
Agenda claim that "Policy authority for Internet-related public policy
issues is the sovereign right of States" is either a meaningless
tautology or, in my opinion, wrong and something to be politically
resisted. You cannot invoke sovereignty when you are talking about
policy for the internet; there are 190 sovereigns and they don't all
agree. And there are transnational constituencies with a stake in the
Internet's governance. National governments do not and cannot
represent them.

Still, this topic is central and makes for a very interesting and
meaningful discussion. And since it's something that cannot result in
binding recommendations or negotiations but is rather an almost
philosophical discussion about the nature of global governance, it seems
perfectly suited for the Forum.

>.xxx issue is seen as the proxy for the broader issue of global IG
public
>policy. There have been two main positions in this discussion [snip]
>One side can be represented by Robin/ Milton's views that .xxx is a
public
>policy issue and ICANN should not have got into public policy arena,
and
>should have stuck to its purely technical mandate. ... To quote
Milton..
>"ICANN's control of the root, we believe, should not be used to 
>exert policy leverage over things not directly related to 
>the coordination of unique identifiers. There are other, more 
>decentralized mechanisms for dealing with
>the policy problems."

Now the first thing to understand about my statement is that I am not
primarily talking about "who does public policy" but rather about, "how
do we avoid censorship and promote freedom of expression?"  and about,
"what is the best, most open and neutral way to allocate and assign
internet resources?" Of course, the specific answer I provide to those
two questions _are themselves public policy positions_ . And of course I
would like the world's govts and other stakeholders to accept and
implement them.

Another important point, is that the concept of "public policy" in the
WSIS/ICANN context seems to mean, "whatever a bunch of governments like
or don't like at any given moment." If that's what we mean by "public
policy" then it does not trump human rights. There are many things that
govts may want to do and even that majorities of people want them to do,
that should not be done. Limits on arbitrary state power are essential
to civilized, orderly governance at any level. 

>Milton, are you veering around to
>the point that there is no need for any global IG public 
>policy processes/structures. or, assuming you are 

No, as I said the positions described above are themselves public
policy positions. 

By noting that there are "more decentralized mechanisms for dealing
with the policy problems," I was referring, mainly, to national
governments. As Robin explained very clearly in her statements, ICANN
could create TLDs at the global level but national governments could
prohibit or even block them on "public policy" groiunds. The difference
is that when national govts act within their own broders most of them
are legitimate and democratically representative, and though I might
disagree with many of their decisions, as long as the effects are
confined to the people who elected them, and are not extended beyond
their borders it is ok.

>Milton has also spoken about the Framework Convention as being the 
>way out. However, if that's the real way forward as seen by Milton 
>(and IGP) it is intriguing why we hear so little about it from them. 

Hmmm, think we're being tricky do you? 

I don't know, I think we mention it a lot. The Mueller, Mathiason Klein
paper just got published in Global Governance, so the concept is being
taken into a new, wider forum. However, note that FC is a _process_
proposal, but we must also be concerned with _the substantive outcomes_
of a FC process as well. So sometimes maybe we emphasize what we would
like to be the principles and norms of a global IG regime as much as we
emphasize the process. And yes, in my opinion, if we could get the
desired outcomes through some other process it would probably be ok.

>So, this stance that ICANN shouldn't do public policy is not
meaningful
>without some clarity about, and clear evidence of devotion of energy
for
>moving towards, what may be legitimate public policy structures. 

I think what we want from governments is not really "public policy" in
the WSIS/ICANN sense (which, to repeat, just means "momentary
preferences of some collection of states"). We want the _rule of law_),
which is what states can best deliver. Of course laws are based on
policy preferences. But they impose greater restraint and discpline on
governments. We want the rules to be fixed and stable, so that societal
action can go forward confidently, not an authority to arbitrarily
intervene whenever sovereigns feel like it. The Rule of Law kind of
"public policy" is legitimate and deisrable in my estimation. 

>I think IGC should be strongly pushing for a 'legitimate public 
>policy space' for IG in a single-minded devotion to the cause. 
>It can be done through persistent efforts at seeking accountability 
>regarding the enhanced cooperation proposal, and it could be 
>about beginning a CS sponsored set of activities for developing 
>internationally applicable public policy principles for IG
>and proposing structural innovations for it. 
>Here, I am not specifically pushing the FC agenda though 
>something like that looks to me the way to go. 

Subject to the qualifications above, I basically agree. 
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