[governance] A Wave of the Watch List, and Speech Disappears

[Karl Auerbach]

Milton L Mueller wrote:

> I think a better way to ask that question is, how can we, via Internet
> governance and global public policy making, better realize the potential
> of the Internet to offer global services without ensnaring end
> users/customers in the idiosyncracies of territorial jurisdictions? 

This is the question that I have been asking for a decade+.

What I always seem to come to is that we are moving away from a world in 
which the basis of plenary power is no longer geographic boundaries as 
established by things such as the Treaty/Peace of Westphalia (1648) and 
the Congress/Treaty of Vienna (1815).

Rather, perhaps dating with the rise of multi-national corporations 
since 1945 and, more recently, the internet, the basis of authority 
seems to be shifting from geography to subject matter.

This has happened before.

For instance, if we look back to much of Europe during the 15th century 
(and earlier, and later) we see a world in which for temporal matters 
there was a local sovereign: king, duke, cosmic muffin, 
whatever-you-call-it.  And for spiritual matters there was the church 
hierarchy with its peak at Rome or Constantinople, depending whether you 
were part of the western or eastern church.

There were clearly conflicts between these two sources of power - and 
accommodations (such as the way that the church handed convicted 
heretics over to the "secular arm" for processing [how's that for a 
euphemism?].)

ICANN, for example, is clearly an accommodation through which the 
executive arm of the US government is doing an end-run to exercise, via 
a private "secular arm", powers which it has not obtained from the 
legislative branch of the US government.  This, like Blackwater, is a 
degeneration of constitutional principles.  We can anticipate that this 
technique will become more common as these non-territorial based systems 
of power arise and are able to obtain mutual benefit through tacit 
relationships with geographic based systems of power.

The idea of public-private partnership is somewhat of an oxymoron, or 
perhaps a fraud, in that, in practice, it appears to result in the worst 
of both - the plenary power of government exercised through the 
unaccountable hands of private actors - rather than the best of both.

We learned much from the folks of the 17th and early 18th centuries how 
to constrain the exercise of power within a geographically based system.

One task we are facing today is how to constrain the exercise of power 
in a world in which geographic nations and subject-matter authorities 
scratch one another's backs in order to evade "local" limitations 
(again, an example comes to mind in the way that the US has evaded 
domestic laws against torture by laundering its actions through other 
nations and hiding it under the euphemism "rendition".)

So we need to take a big step back and consider that we are dealing here 
with power and authority.  The fact that we are mainly dealing with it 
in the context of the internet is merely incidental to those questions.

In my experience the cliche that "power corrupts and absolute power 
corrupts absolutely" is something worth remembering.  And one cure to 
this is to retain some sort of "off" button to any subject-matter based 
authority (I'm kinda putting geographic ones as beyond hope).

How does one create these "off" buttons?

One way is to clearly define duties and constraints - constitutions - 
for every body.

Another is to keep the bodies small.  Multi-purpose bodies, such as 
ICANN, are able to do a Sally Rand fan dance to refocus the public view 
away from particular naughty bits.

A third method is to create sunset limitations that automatically undo 
what the body has done after a period of time and thus forcing periodic 
re-argument and re-confirmation of previous decisions.

And finally, there must be a means through which the public, not 
"stakeholders" but rather the public without qualification, when it 
becomes "mad as hell" can put its collective head out its window and 
yell "I'm not going to take it anymore!"  We have seen, through both 
ICANN and the IGF process that the idea of a public voice scares the 
beejeebers out of many professional bureaucrats and they will work like 
angry bees to keep the public out of bodies that are nominally supposed 
to be for the benefit of that public.

		--karl--

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