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

[Dan Krimm]

Hello folks,

Just joining the list as of yesterday, but I think I can add something to
clarify here.

I think what Milton seems to be getting at is the difference between
"substance" and "jurisdiction" in public policy.


A good example is the Brand X case in the US Supreme Court in 2005 that
initiated all the current Net Neutrality shenanigans.  The case was decided
according to jurisdiction, not substance (i.e., SCOTUS ruled that SCOTUS
did not have standing to contravene an FCC ruling satisfying a "rational
basis" under the existing statute as written -- SCOTUS did not rule on
substance of the FCC ruling, but there were indications that many on the
court would have chosen differently on the substance -- the jurisdictional
ruling is based on a SCOTUS precedent known as "Chevron deference" which
established guidelines under the Administrative Procedures Act for how
SCOTUS should deal with executive agency regulations vis-a-vis
congressional legislation).

The Brand X decision has effectively thrown the ball back to Congress,
which is why it's such a fight there these days.  SCOTUS basically said:
"It's not my job.  Fight it out in the legislative process, where all
political decisions should be made.  We are not a political body."  (Note:
I don't necessarily agree with the decision, as I'm not sure the FCC has a
genuine "rational basis" for its ruling that cable broadband ISP services
are not "telecommunications services" but rather "information services" and
thus not governed by a lot of the common carriage and
local-competition-preserving regulation that applies to telecom in the US,
I'm just characterizing the SCOTUS decision as to type.)


I believe that Milton is saying that ICANN should also say "it's not my
job" when it comes to substantive (i.e., non-technical policy) matters
regarding gTLDs.  And I think I would agree, because ICANN is not
structurally very accountable to a broad range of stakeholders with respect
to such substantive policy decisions.  Better to leave those substantive
decisions to individual sovereign nations for now, as we do not have an
effective "world government" at this time beyond the UN, a patchwork of
international treaties, and specific bi-/multi-lateral agreements, and
ICANN is really not equipped to become a world government in and of itself,
either in terms of resources or systematic processes of accountability,
even for what may seem at present to be a relatively "narrow" policy
domain.  It's potentially not nearly as narrow as it seems, especially if
one takes into account the potential for additional "creeping jurisdiction"
over time.

It may not be necessary that all nations must come to agreement about these
substantive policy matters in order for the Internet to "work".  Trying to
force political consensus at the global level when there is none in
practice is ill-advised and potentially creates worse problems than
anything it may solve.  Technology is not capable of superseding these
disagreements on its own.  Full-fledged political processes will need to be
engaged when the substance of the policy is political.  And it is best if
such political processes are located in the most broadly accountable venues
possible.  ICANN is currently not such a venue, and it is difficult to
envision if or when it could become so.  And if there is no specific
alternative venue to replace it, that may still be the best alternative
option, as a bad, forced "solution" to some political disagreements may be
worse than no consensus agreement at all.

Bottom line:  I agree it would be good public policy for ICANN not to
assume jurisdiction over nontechnical substantive policy matters with
respect to gTLDs.  A decision to deny the .xxx domain application on
nontechnical grounds sets an unfortunate jurisdictional precedent in that
regard, regardless of what one thinks about the substantive matter of
whether to establish .xxx itself.  The accountability of the ICANN gTLD
process is simply not adequate to be making reliable decisions of such
substantive nature on a global basis.  Better that ICANN should be
"minimalist" in its jurisdictional approach.

Dan Krimm

PS -- FYI, I am joining the ICANN Whois Working Group on behalf of NCUC,
and look forward to contributing productively over the next few months and
perhaps more.  I anticipate learning much from the people on this list, as
I did for a few months in the fall when I was working at CPSR and observed
the conversations here.  Brief background: I have an MPP degree
concentrating in ICT policy as of last spring, following over 20 years
working in production and project management roles for online service
businesses.  I am not a deep sysadmin-level techie (also have no law degree
per se), but I know how to ask useful questions of those who know the
answers, and I am primarily engaged in the public policy dynamics, from a
public-interest stance.  I have done some work for Robin Gross at IP
Justice over the last couple years, which is where I got my initial
introduction to international ICT policy issues.  I am not nearly as
experienced as most of the people here in the practical development of
these issues, but learning quickly.




At 11:56 AM -0400 4/14/07, Milton Mueller wrote:
>>>> "Parminder" <parminder at itforchange.net> 4/13/2007 5:20:21 AM >>>
>>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.
>
>Yes, you can say any decision by ICANN that is generally applicable to
>the Internet either _is_ "public policy," or is derived from legal or
>normative policy assumptions, or has policy implications. I have always
>argued this.
>
>Where we seem to differ is that you, and many governments, believe that
>designating something as "public policy" means "we [governments] get to
>control it." My point is, not necessarily. It can be wise public policy,
>or a human right, to have governments _not_ interfere. And even when we
>want govts to intervene, they need to do so by means of clear, just
>rules, not just whims.
>
>I take strong exception to the view, that it is necessarily
>"progressive" or humanistic to advocate state intervention as a matter
>of principle, particularly after a century of experience showing how too
>much of it can be both oppressive and economically counterproductive. So
>don't get too excited about being able to call "everything" public
>policy, or showing that every decision has policy implications. It does
>not necessarily provide a rationale for state intervention, or
>redistribution of wealth, or the other things you are interested in.
>
>>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 publicvpolicy position of rejecting .xxx which, in your view, is
>an
>>adhoc interference by governments, and largely illegitimate.
>
>Not quite correct. I simply want to draw a clear distinction between
>lawless, arbitrary interventions by governments, and true, legitimate
>public policy, which is formed from deliberation, representation and due
>process. Some people seem to believe that whatever governments say they
>want at a given moment, is somehow "public policy." I disagree. The
>problem with GAC's intervention in .xxx was that it was not guided by
>any legitimately formulated law of global scope. And the same problem
>exists with the proposed GAC intervention in all future new TLD
>applications. It is self-evidently ridiculous for governments to take a
>"we know it when we see it" approach to public policy issues in ICANN --
>but that is where we seem to be going.
>
>>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'
>
>Education, FoE and Internet are related but one aspect of this
>equivocation is just wrong. Internet is not the same as education. It is
>a data communication services platform, over which education and many,
>many, many other things can be delivered. There are other aspects of
>this equation that are troublesome to me. First, by "public" you always
>mean "state/government". Are you then suggesting that the governments of
>the world should take over the supply of Internet access, routing, etc?
>Do you seriously think that this would improve Internet access in
>developing countries? Second, while one can support efforts to subsidize
>access to people who wouldn't otherwise be able to afford it, I see no
>need, and much damage, caused by an attempt to make it "free" (as in
>"free beer," not free software) for everybody.
>
>>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.
>
>Yes. And there is every reason to believe that the same will be true of
>developing countries, indeed, the advances in telecom access made in
>India as liberalization has progressed there are fairly obvious, aren't
>they?
>
>>(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)
>
>It's not cheap to do something about FoE, people get put in jail or
>even shot for it. As for "free" internet, I suspect that most people
>have enough economic historical knowledge to be suspicious of free lunch
>promises from politicians.
>
>>(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?
>
>not sure what you mean by this.
>
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