[governance] RE: who does "public policy" then?

[Parminder]

Thanks Milton, for a very detailed reply.

 

It is good that we agree on many things, so excuse me for taking this
discussion forward on a few points of difference. 

 

The main issue you raise in terms of what is public policy is of ad-hoc
interferences by governments, versus a stable rule of law.  I myself am
calling for shaping public policy through developing of appropriate
processes and principles of law and policy. However, I am very concerned
about the power play in this realm of what gets construed as 'rule of law'
itself... to understand this lets revisit the .xxx discussion. 

 

> 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.

 

So, what you say makes it clear that whether ICANN registers .xxx or refuses
to do so, it does activities of a public policy nature. Because, if they had
accepted your ' public policy positions' they still would have a public
policy position. This is important for all of us in the .xxx debate to
understand and acknowledge. Many people who have argued against the ICANN
decision do not seem to think that the refusal itself is a public policy
stance. 

 

Now, you seem to legitimize this particular public policy position of ICANN
(had ICANN taken it) on the ground of  a  superior legitimate, commonly
accepted 'rule of law' in terms of human rights, as against the public
policy position of rejecting .xxx which, in your view, is an adhoc
interference by governments, and largely illegitimate.

 

I wont argue about the second part - about legitimacy and ground of GAC's
interference in this case, though there is much to say about it as well - I
will only touch upon the 'human rights' basis of what you say would have
been the legitimate public policy position of ICANN. 

 

You obviously mean that it derives from the freedom of expression provided
in the universal declaration of human rights.....

 

One, we all know that this doesn't mean no regulation at all in the arena of
speech. You know very well the debate on media ownership and concentration
in the US (and most other countries) and how media companies quote FoE in
their defense whereby affecting ordinarily people's FoE. Therefore
interpretation of 'human rights' in different contexts remains an important
public policy issue... 

 

Two, it bothers me a lot how some human rights get quoted, interpreted in
new contexts and operationalised much much more than others. The same
instrument that gave us the FoE - universal declaration of human rights -
also provides for the 'right to free education'. I interpret this right in
the digital age (or the information society) as 'right to free, and public,
Internet' Is it difficult to see the basis of this interpretation? 

 

So, the question is, how do we operationalise this human right in Internet
governance?  

 

And why we almost never hear of this right in the context of IG, while FoE
is all around us. Has this anything to do with that

 

(1) Many countries have reached a situation of strong institutional maturity
where markets are able provide a near universal access to the advantages of
the new ICTs.

(2)It is cheap to speak about FoE but right to a free, and public, internet
means a redistribution of resources (remember, right to free education also
does so)

(3) Speaking of free and/or public nature of many aspects of these new ICTs
have very deleterious effect on the new paradigms of comparative advantage
(actually, rent seeking) that these countries are in the process of building
for the information society which has challenged existing socio-economic
power relationship?

 

And, that the debates on IG are dominated by people from these countries. 

 

Are we consistent, and just, when we speak about constitutionality, rule of
law, and accepted human rights. I think we, as civil society in the area of
IG, need to ponder these questions. They are important in the context of the
subject under discussion, 'who does public policy then', and the relative
different levels of urgency felt by different people in pursuing this
question.   

 

Parminder 

 

 

 

________________________________________________

Parminder Jeet Singh

IT for Change, Bangalore

Bridging Development Realities and Technological Possibilities 

Tel: (+91-80) 2665 4134, 2653 6890

Fax: (+91-80) 4146 1055

www.ITforChange.net 

 

> -----Original Message-----

> From: Milton Mueller [mailto:mueller at syr.edu]

> Sent: Friday, April 13, 2007 9:45 AM

> To: parminder at itforchange.net; governance at lists.cpsr.org

> Subject: who does "public policy" then?

> 

> 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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