[governance] Human rights and new gTLDs

[Dan Krimm]

Sorry for the delayed reply and for starting "back at the beginning" but
I've been otherwise engaged for the last couple days and there are some
points here that I think may be getting lost.  We covered some of this
ground on the Keep The Core Neutral web site, but it's worth pulling some
of that into context in this discussion.


 (1) This is an inherently political issue and discussion, because it has
to do with strong power to control expression.  You can't get away from the
politics; it forms the very foundation of the issue in the first place.
And these politics of expression are *very* important in an Information
Society.  There may be *nothing* more important to sustaining the dynamics
of a democratic system of governance than ensuring open platforms of
communication.


 (2) So, given that this is about political control, the question is:  "Who
or what should have the authority to control expression on the Internet?"
(It starts with the expressive characteristics of gTLDs in this case, but
potentially expanding to anything of an expressive nature that the
controller-venue might eventually have authority to govern.)

The thing about control of expression is that the more centralized it is
the more it looks like censorship, while the more distributed it is (toward
the edges) the more it looks like freedom.  It's not that control is being
amplified or attenuated, it's just that control is being moved around,
between concentrated or disbursed configurations of controllers.


 (3) Who are "we" to make this decision, of behalf of the whole world?  Are
we accountable to the citizens of the world (and if so, how)?  Does having
a "multi-stakeholder" process automatically make it "accountable"?  (I
don't see how this could possibly work, thus I am dubious of the
possibility in the first place.)  It sounds more like Plato's "philosopher
kings" and frankly I'm not in a mood to construct any sort of
monarchy-driven governance system, even a "collegial" or supposedly
"enlightened" one.  It's not democratic.  It seems presumptuous at the very
least to suggest that any combination of supporting/advisory organizations
and administrative staff could create a governance system for this sort of
powerful control issue that is going to yield a wise and fair outcome for
the entire globe at once.

Why should ICANN be the venue to make such decisions?  What ICANN does in
the case of rejecting a gTLD application cannot be undone (without
completely discarding and ignoring ICANN's authority altogether and
coordinating around an alternative institutional structure), but if ICANN
chooses not to reject applications that pose no technical/operational
problem, others remain free to do so if they must.  This is not a
symmetrical situation, and by refusing to reject gTLD applications on the
basis of non-technical/operational criteria ICANN would not impose anything
on anyone.  We are "packed together in the same room" but it's a big enough
room that we need not listen to everyone in the room, even so.  We do have
tools to decide whom to listen to and whom to ignore.

If the price of getting democracy "in under the radar" in non-democratic
nations is self-censorship on a global scale, then I think the price is far
too high.  The simple fact is that no matter how long a democratizing
effect remains under the radar, at some point the authoritarian government
will wake up and at that time there is no problem at all imposing
non-democratic features on the network.  Buying a bit of time at the outset
is not a defining step -- it is as easily undone as the "dumb-pipe"
architecture of TCP/IP.  It is as vulnerable to being undermined as
Netscape was vulnerable to Microsoft when M$FT finally woke up and realized
that Navigator was "democratizing" its concentrated OS market power by
threatening a middleware escape pathway.


 (4) As for drawing lines, sure, everyone has places where they would draw
lines.  And if I can control what information I choose to be able to view,
I can exercise that control without having to reach consensus with anyone
else.  And if freedom of expression is abused, one of the best ways to
remedy the situation to to engage in corrective expression.

There is no way we will ever achieve perfection in terms of a global
consensus on these issues.  Not even in the long run -- that pipe dream is
utterly utopian.  We will have to contend with cultural disagreement
literally until there is only one sentient being left in the universe.


So, I don't want ICANN to play God here.  The least of evils of authorities
that we have constructed at this period in the evolution of civilization
are embodied by national representative governments and international
treaties, flawed as they are as of yet.  Even though our current US
administration has forgotten the point, what we are aiming for is the 'rule
of law' instead of the 'rule of humans'.  The problem with ICANN doing the
ruling is that there is no accountable rule of law available to ICANN given
its currently structure as determined in its bylaws, so inevitably it must
amount to the rule of humans in the end, even if it is some collective of
humans.  In the end it's just a big self-congratulatory elite, not a
genuine legal/judicial/enforcement system with structural accountability to
more than wealthy powers that would be called "lobbyists" in any truly
representative system.

These are really hard questions to resolve in the political arena, and
ICANN has no silver bullet to do what societies have struggled with for
generations upon generations.  The fact is that the struggle will continue,
and we have to design a system that allows the struggle to be engaged in
governance venues that are as accountable as possible to the full citizenry.

ICANN simply is not a contender for such a system, in principle.  And while
I admire the persistent determination of people such as Avri who are not
ready to give up looking for something better (keep tweaking the system as
it stands...), when it comes to deeply political issues that are so
profoundly incapable of being resolved in a consensus process, I cannot
envision ICANN ever providing the right kind of process to deal with these
issues.  The only thing that makes sense for ICANN is to stick to the
things it *can* address productively, and leave the impossible "wicked"
problems to explicitly and consciously political venues to continue the
endless struggle.  If there is progress to be made in ICANN's governance
processes, it is in defining sensible (i.e., narrower) boundaries and
constraints on what sorts of policy matters it will address at all.

There are some social problems that simply have no fair and just and
equitable global consensus solutions, and you can't mandate them out of
thin air.  Such an ultimately fiat-based mandate is simply authoritarian
oppression by another name.

When it comes to democracy fighting authoritarianism, you can't fight fire
with fire.  You have to pour water on the flames or otherwise remove the
ambient oxygen supply.  All ICANN has is the petroleum of an inevitably
skewed "multi-stakeholder" structure to pour on the fire of general
political contests, because the clear water of genuinely representative
democratic accountability is nowhere to be seen and cannot be tacked on as
an after-thought.

Dan
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