[governance] JPA - final draft for comments
Lee W McKnight
lmcknigh at syr.edu
Thu Jun 4 13:51:25 EDT 2009
Parminder, Anriette,
This opens a longer discussion, beyond final tweaking of statement, but (in my opinion):
1) IGF is/will be the forum for enhanced cooperation, following wsis - I believe the Brazilian government has made a statement along these lines not long ago. I agree.
Benefit: since IGF already exists, we don;t need to invent it.
2) IGF is already the (nascent) forum helping channel feedback from the interested multistakeholder community to ICANN.
Our objective is to eventually get govts & biz comfortable with 1 + 2, since I think cs already feels (reasonably) comfortable that its voices can be heard at IGF.
It may well take the various steps Anriette outlined to get there, but at least (in my opinion) we know where we are going....to Egypt! ; )
Lee
________________________________________
From: Parminder [parminder at itforchange.net]
Sent: Thursday, June 04, 2009 7:17 AM
To: governance at lists.cpsr.org; Anriette Esterhuysen
Subject: Re: [governance] JPA - final draft for comments
Anriette
Thanks for a very detailed analysis, and as you know I agree with all of it.
Just thought will contribute two comments (Ian, this is not necessarily to do with the text being considered.)
>I found the comment made, I think, by one of the European government
>reps at the CSTD very powerful: that (I am paraphrasing and hopefully
>not misquoting) ICANN does not effectively distinguish between the
>regulator and the regulated.
I agree that this is the principal problem with ICANN. However, such a situation is structural with industry-led models, isnt it. It can hardly be otherwise. It is for this reason that we should strongly oppose the language of 'industry-led' model used in the NTIA questionnaire.
Secondly, as for your very useful presentation of possible steps towards alternative arrangements, it is important that we reclaim the 'enhanced cooperation' framework for this purpose. That would be the clearly the most practical way to go forward. This framework is there, and there is an express direction to SG to do something on it, which he has not. It is a bit odd to mention the need for a process to start etc for an external accountability/ oversight framework without invoking the enhanced cooperation framework.
parminder
Anriette Esterhuysen wrote:
Dear all
Apologies for being silent on this important discussion. We are working
on an APC submission and want it to be as consistent with the IGF one as
possible.
Our thinking from a strategic point is that yes, we really should
emphasise that there is consensus on the JPA not being an acceptable
arrangement. It is important that that stands out clearly in all (or
most) submissions from civil society.
Then, if there is some nuance or different suggestions as to how and
when the JPA should be terminated, that won't matter so much as it will
not contradict what is a very widely held position on the JPA in
general.
Some thougths on the text below from Jeanette:
I am not sure why you categorize this as a 'technical aspect'. As I
said at an earlier state in this debate, I don't think it is wise to
privatize a task and then try afterwards to build a regulatory or
accountability frame around it. We want to get rid of unilateral
control and we want to replace it by something more international -
some of us think of an intergovernmental framework, others prefer a
multistakeholder arrangement. For me, this looks like an eminently
political point, not a technical one.
I think Jeanette has a point. Personally I do think it is risky to have
a situation where one's only recourse is the ICANN board and California
courts. All the language in the NTIA call for comment on the JPA is
about whether the time has come to transfer all the relevant
responsibilities to *private* or *private sector* control. It is based
on the assumption that industry is the primary player and should be
driving the process. The only question that mentions stakeholder
participation is no. 4 which refers, vaguely, to "multi-stakeholder
model" in the text of the 2006 annex to the JPA:
"4. In 2006, the focus on specific milestones was adjusted to a series
of broad commitments endorsed by the ICANN Board as an annex to the JPA.
Specifically, ICANN committed to take action on the responsibilities set
out in the Affirmation of Responsibilities established in ICANN Board
Resolution 06.71, dated September 25, 2006.12
Those responsibilities included activities in the following categories:
security and stability, transparency, accountability, root server
security and relationships, TLD management, multi–stakeholder model,
role of governments, IP addressing, corporate responsibility, and
corporate administrative structure. What steps has ICANN taken to meet
each of these responsibilities? Have these steps been successful? If
not, what more could be done to meet the needs of the community served
in these areas?"
Jeanette also says:
We want to get rid of unilateral
control and we want to replace it by something more international -
some of us think of an intergovernmental framework, others prefer a
multistakeholder arrangement. For me, this looks like an eminently
political point, not a technical one.
Is it naive to think that it could be both? That:
Step 1: an international intergovernmental framework is developed WITH the participation of non-governmental stakeholders, drawing on the ICANN experience
Step 2: governments agree to this framework in the form of a treaty or some other agreement
Step 3: a multi-stakeholder body/process is established to to monitor implementation
Step 4: the arrangement is reviewed every 5 years or so
I think someone, Milton if I remember correctly, mentioned the World Comission on Dams before as an example http://www.dams.org/.
By 'technical aspect' i meant that those who have not favored JPA's
immediate termination have not done so because they per se like the
JPA to continue but because they want other arrangements to be
finalised before JPA is terminated. However, in substance, everyone
does want JPA to be terminated. I just want that fact to come out
strongly enough for it to be taken notice of. Thats all.
Agree with Parminder on this.
Having read through the inquiry call several times I feel there are
really three primary points we want to get accross:
1) The JPA does need to end and be replaced by an arrangement which is
constituted from the outset as international and that clearly frames the
participation, roles and responsibilities of governments, the private
sector, civil society, and the academic and research community.
2) The fundamental principle that underpins the JPA has been private
sector leadership and management of DNS etc. We believe this needs to be
reconsidered in the light of the WSIS process and WSIS principles which
governments agreed to, and which have been broadly endorsed by business
and civil society actors.
We believe that the fundamental principles that underpin the work done
by ICANN, and therefore its structure, should be (1) the public interest
as opposed to the interests of specific private sector entities and (2)
multi-stakeholder participation.
3) ICANN, in spite of the extensive efforts undertaken by ICANN staff
and the ICANN board have not been able to successfully meet several of
the milestones outlined in the JPA annex. Moreover, new difficulties
have emerged in the form of... and here different submissions can
highlight what they feel are most important.
I found the comment made, I think, by one of the European government
reps at the CSTD very powerful: that (I am paraphrasing and hopefully
not misquoting) ICANN does not effectively distinguish between the
regulator and the regulated.
Please note that I am not making these comments as suggestions for
amendments to the IGC submission. I think you have done a very good job
in capturing consensus.
This NTIA inquiry has been a very good thing in forcing us all to have a
serious discussion about the JPA and ICANN.
Anriette
However, i have already expressed agreement for the text as it stand now.
Parminder
However
this does not come out clearly in the statement. So I thought it is
best to make it clear. I may be wrong though on your reasons for
seeking extension of JPA, in which case I would like to hear about them.
As for 'no one knowing what the best way forward is' - the crucial
difference between political arena and say academic etc arenas is
that at crucial times one has to speak up - and paralysis of views
and/or action can be even more dangerous.
But we are striving towards a consensus position that, in my view,
should take into account that different positions may reflect the
openness of the situation (instead of merely ideological differences).
jeanette
(Having different views is a
different matter altogether though). Just my view.
parminder
Parminder wrote:
Jeanette
The remark
"I would of course like it even better if all of us can agree that
"JPA should end and a we agree on an MOU for a transition'. "
was only answering Lee's formulation and Carlos's agreement to it.
See the emails below.
When I say 'I would of course like it even better...' after giving
more definitive comments in the earlier email, it is clear that I
am not trying to queer the pitch as you suggest I am trying to do.
As for expressing 'the views of more people than those speaking up
here' lets not even open up that debate here. BTW it Micheal's
Gurstien's pet theme :). You may want to see his emails.
parminder
Jeanette Hofmann wrote:
Parminder, we were so close to an agreement but now, for some
reasons, you suggest to marginalize those who don't agree with
your position.
I definitely disagree with your version.
Perhaps I should remind you that only very few members participate
in this discussion. The latest version presented by Ian is much
more consensus oriented as it integrates the views of more people
than those speaking up here.
jeanette
Parminder wrote:
I would of course like it even better if all of us can agree that
"JPA should end and a we agree on an MOU for a transition'.
this language is even clearer and more powerful.
Carlos Afonso wrote:
Dear Lee,
Lee W McKnight wrote:
[...]
Seriously, in the next A or U there could be a mandate for
participation in a transition process, with of course USG
noncommittal to the conclusion of the transition process, until
that
end state is defined more precisely than it is today. Maybe that's
what we advocate, end the JPA and agree on an MOU for a
transition?
Lee
I agree this is a realistic prospect. It of course does not mean we
should not express our position (with the obvious educated
guesses on
what our chances are) -- this is how political "negotiations" go...
frt rgds
--c.a.
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