[governance] JPA

Milton L Mueller mueller at syr.edu
Mon May 25 16:19:46 EDT 2009


Ian,
Good post.
Let me briefly take up your colonialism metaphor, because it is a strong one. Suppose that the British empire was about to grant India its "independence" but it had also saddled the Indians with an incumbent governance structure and an entrenched governing elite that was not in line with the wishes of the population. If by declaring independence and gaining recognition as an independent entity the British were merely delivering the state apparatus into the hands of this illegitimate elite, would you favor immediate or delayed independence? Perhaps a delay might alter the conditions of independence, e.g. providing for more democratic processes in selecting the leaders of the independent government, or a better constitution?

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org<http://internetgovernance.org/>



________________________________
From: Ian Peter [mailto:ian.peter at ianpeter.com]
Sent: Monday, May 25, 2009 4:08 PM
To: governance at lists.cpsr.org; Willie Currie
Subject: Re: [governance] JPA

When I hear strong and respected voices such as Willie and APC, Bill Drake and Milton Mueller arguing for a continuation of the JPA with specific conditions, it is obvious to me that it will be difficult to get consensus on a statement to the DOC review.

While I am inclined to agree with many of the comments, I cannot envisage that a continued JPA will solve any of these issues, and also believe that a continued JPA brings into question ICANN's legitimacy in the international arena.

So I don't know. We have different opinions here on how to cure the problem. So let me say the following, speaking absolutely in a personal capacity here.

The colonial era existed for a long time on the belief that countries and certain races were not mature enough to self govern. I see strong echoes of colonialism in suggesting that ICANN cannot solve its problems without the patronism of the US Government.  I echo (as I did in Hyderabad) the opinion of Mahatma Ghandi to the British when they questioned the timing of an independence movement- we would rather have our own bad governance that your good governance.

We have chicken and the egg here - which comes first? While I think the international treaty is a good idea, to continue a JPA until we have one lessens the chance of one evolving.

But if people wish, lets continue and look for middle ground.

I would not argue for an extended JPA under any conditions. I would be prepared to argue for an immediate cessation of the JPA subject to ICANN agreeing to (taking up APC's points)

   - abolish the GAC and have governments either participate as a stakeholder directly in ICANN structures e.g. the Board, GNSO etc just as other stakeholders do or specify the role of governments in managing critical internet resources through an international treaty
- separate the ICANN global governance regime from national governance e.g. ccTLDs which should be handled at national level with suggested guidelines on how to go about this (multi-stakeholder principle, WSIS principles etc)

 *   an international treaty to govern the management of critical internet resources should be entered into between governments in consultation with the private sector and civil society (that would set the principles and broad parameters for ICANN as an independent international economic regulator but not interfere in its operations)

(and I would add embedding the principles referred to below)

Is there a way forward along these lines? To me it would need to be absolutely clear that continuance of JPA until these arrangements are in place is not an option.


Ian Peter





On 25/05/09 8:39 PM, "Willie Currie" <wcurrie at apc.org> wrote:

Hi Ian

In APC we are exploring whether to make a submission on the JPA expiry on the following lines:

Q1: change the principle 'private' to 'multi-stakeholder' and propose WSIS principles
Q2 say the ICANN model is flawed as it allows for arbitrary interventions by the GAC to override its decision-making processess as in the .xxx case,  does not in its decision-making processes comply with the standards of an economic regulator, confuses public policy regulation with commercial activities, lacks proper accountability whether internal or external, lacks full international legitimacy. ICANN can be internationalised as an economic regulator for the DNS and the JPA allowed to expire after the following steps:
- abolish the GAC and have governments either participate as a stakeholder directly in ICANN structures e.g. the Board, GNSO etc just as other stakeholders do or specify the role of governments in managing critical internet resources through an international treaty
- separate the ICANN global governance regime from national governance e.g. ccTLDs which should be handled at national level with suggested guidelines on how to go about this (multi-stakeholder principle,WSIS principles etc)
- an international treaty to govern the management of critical internet resources should be entered into between governments in consultation with the private sector and civil society (that would set the principles and broad parameters for ICANN as an independent international economic regulator but not interfere in its operations)
Qs3,4 & 5: recognise that ICANN has made progress on meeting some of these steps but they are not sufficient in themselves as the overall problems outlined in Q2 have not been met and can't be met within the current governance arrangments for ICANN.
Q6:  say therefore that the USG cannot let the JPA expire until theconditions outlined under Q2 have been met.

This conclusion is somewhat surprising for us to reach as we have argued against the unilateral control of ICANN by one government. We have also been hesitant about arguing for an international treaty but feel the sooner we face up to this as a reality the better. We are worried about a black swan blindsiding the system of managing critical internet resources to the detriment of the internet as a whole and lack confidence in letting ICANN go without there being a legitimate accountability mechanism in place.

Willie


Ian Peter wrote:
JPA


There have been suggestions on the list we should comment on the JPA - which I think would be a good idea. Below is DOC's call for comments with some suggested IGC responses in CAPS. We have until June 8 so we probably need to get something decided fairly quickly if we are to respond.

Any suggestions or thoughts? One thing I am suggesting below is that ICANN needs to embed various principles in its operation. These are in by-laws but that would appear to be easy to change. Those closer to ICANN might be able to suggest an appropriate mechanism for this.


Ian Peter


REQUEST FOR COMMENT:

   Given the upcoming expiration of the current JPA between the
Department of Commerce and ICANN, NTIA seeks comments regarding the
progress of the transition of the technical coordination and management
of the Internet DNS to the private sector, as well as the model of
private sector leadership and bottom-up policy development which ICANN
represents.
    The questions below are intended to assist in identifying the
issues and should not be construed as a limitation on comments that may
be submitted. Comments that contain references, studies, research, and
other empirical data that are not widely published should include
copies of the referenced materials with the submitted comments.
    1. The DNS White Paper articulated four principles (i.e.,
stability; competition; private, bottom-up coordination; and
representation) necessary for guiding the transition to private sector
management of the DNS. Are these still the appropriate principles? If
so, have these core principles been effectively integrated into ICANN's
existing processes and structures?

IGC BELIEVES THESE PRINCIPLES ARE IMPORTANT AND WOULD LIKELY TO SEE THEM PERMENANTLY EMBEDDED IN THE CONSTIUTION OF AN INDEPENDENT ICANN

    2. The goal of the JPA process has been to transition the
coordination of DNS responsibilities, previously performed by the U.S.
Government or on behalf of the U.S. Government, to the private sector
so as to enable industry leadership and bottom-up policy making. Is
this still the most appropriate model to increase competition and
facilitate international participation in the coordination and
management of the DNS, bearing in mind the need to maintain the
security and stability of the DNS? If yes, are the processes and
structures currently in place at ICANN sufficient to enable industry
leadership and bottom-up policy making? If not, what is the most
appropriate model, keeping in mind the need to ensure the stability and
security of the Internet DNS?

IGC BELIEVES THAT THE SECURITY OF THE INTERNET DNS CAN ONLY BE ENSURED BY INTERNATIONAL AND TRANSATIONAL CO-OPERATION.  THAT CO-OPERATION WILL BE ENHANCED BY TRANSITION BEYOND THE JPA TO A SITUATION WHERE ALL COUNTRIES, AS WELL AS OTHER STAKEHOLDERS, FEEL THEY HAVE EQUITABLE ARRANGEMENTS FOR PARTICIPATION

  3. The original agreement and the first six amendments to the JPA
contained a series of core tasks, and in some cases, date-specific
milestones. Have these tasks been accomplished and have these
milestones been met? If not, what remains and what steps should be
taken to successfully address them?


    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?

    5. The current JPA called for NTIA to conduct a mid-term review.
That review revealed that ICANN needed to take further steps to
increase institutional confidence related to long-term stability,
accountability, responsiveness, continued private sector leadership,
stakeholder participation, increased contract compliance, and enhanced
competition. What steps has ICANN taken to address the concerns
expressed in the mid-term review process? Have these steps been
successful? If not, what more could be done to meet the needs of the
community served in these areas?

    6. The JPA between the Department of Commerce and ICANN is an
agreement by mutual consent to effectuate the transition of the
technical coordination and management of the Internet DNS in a manner
that ensures the continued stability and security of the Internet DNS.
Has sufficient progress been achieved for the transition to take place
by September 30, 2009? If not, what should be done? What criteria
should be used to make that determination?

IGC BELIEVES THAT SUFFICIENT PROGRESS HAS BEEN MADE IN THESE AREAS FOR THIS TRANSITION TO TAKE PLACE.

    7. Given the upcoming expiration of the JPA, are there sufficient
safeguards in place to ensure the continued security and stability of
the Internet DNS, private sector leadership, and that all stakeholder
interests are adequately taken into account? If yes, what are they? Are
these safeguards mature and robust enough to ensure protection of
stakeholder interests and the model itself in the future? If no, what
additional safeguards should be put in place?

THE PRINCIPLES OUTLINED ABOVE ARE CONTAINED IN ICANNS BY LAWS. THEY  NEED TO BE EMBEDDED IN SUCH A WAY AS TO ENSURE THEY CANNOT EASILY BE CHANGED TO EXCLUDE ANY  STAKEHOLDER GROUP.

8. The JPA provides that before its termination, NTIA and ICANN are
to collaborate on a DNS Project Report that will document ICANN's
policies and procedures designed and developed pursuant to the
agreement. What should be included in this report?






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