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

[Mawaki Chango]

>  Many people who have argued against the ICANN decision do not
> seem to think accepting the .xxx tld would itself have been a
public policy
> stance..

In my opinion, they do acknowledge that. Who would advocate
human rights and dare say they are not involved with public
policy? My understanding is that they preceive "ICANN accepting
the .xxx tld" would have been a better public policy stance
overall, or the right policy stance by default. What I mean (and
understand) by that is, those advocates are a priori not
involved in the .xxx tld application, they may not need to use
that tld if it were authorized, but some people somewhere
applied for it, and some people somewhere may think that would
be useful for their activity, their identity, their expression,
and would certainly use it. So the pro-FoE position is, *in the
absence of a legitimate, competent, agreed upon public policy
body and process that could compellingly settle this (on the
basis of its legitimacy and competence for a global utility,)
the best public policy option available is to let those people
who beleive in that tld, want it and think it is worth their
investments or resources, to do their thing. Especially so,
since national sovereigns still and fully have the possibility
to enacte or enforce relevant national public policies with
regard to that tld and possible contents.

I must say, though the relevance and, most of all, the direct
relationship from the FoE argument to the acceptance of .xxx tld
may not be as perfect and as clear to everyone, I don't see
anything better from the opposite side in terms of reference to
global legal basis/principle (as is FoE), internationally agreed
upon frameworks, and institutional processes.(*)    

Anyway, the bottom line is processes are crucial. If we have
clear and legitimately established processes in place, probably
no one would seriously spend time questioning the outcome;
people could only challenge the implementation for fault and
take it up to the appeal mechanism. But at the end of the day,
whether they like it or not, they will accept the final outcome
as is.

Mawaki

(*)  Putting this as footnote because I don't intend to reopen
the argument, but just clarifying my assumptions and
understanding: the most important arguments I've heard from that
side are about perceptions of people's values, their possible
negative reactions (governments will get upset with ICANN) and
morales, etc. Sure, those arguments are serious to consider, but
again, the .xxx-like contents are already all over the Net (the
tld will not create them, and btw guess what, the irony is those
contents have played a tremendous role in the early development
of the commercial Internet); also governments who seriously feel
offended for their citizenry having access to those contents are
already blocking them -- so those who just dicover the existence
of those contents on the Net could have just joined the latter
cohort (I was also wondering if the content argument was the
problem, isn't it easier for someone to google 'sex' or 'porn'
and get the adult sites than it would be by guessing a domain
name 'abc' under .xxx just because we now have that tld in the
DNS? ...just wondering.)
 

--- Parminder <parminder at itforchange.net> wrote:

> Sorry, in my email below 
> 
>  
> 
> I meant to say - -
> 
>  
> 
>  Many people who have argued against the ICANN decision do not
> seem to think
> accepting the .xxx tld would itself have been a public policy
> stance..
> 
>  
> 
> Instead of 
> 
>  
> 
> Many people who have argued against the ICANN decision do not
> seem to think
> that the refusal itself is a public policy stance.
> 
>  
> 
> ________________________________________________
> 
> 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
> 
>  <http://www.itforchange.net/> www.ITforChange.net 
> 
>   _____  
> 
> From: Parminder [mailto:parminder at itforchange.net] 
> Sent: Friday, April 13, 2007 2:50 PM
> To: 'Milton Mueller'; governance at lists.cpsr.org
> Subject: RE: who does "public policy" then?
> 
>  
> 
>  
> 
>  
> 
> 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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