[governance] JPA

[YJ Park]

Dear Ian:

I would like to appreciate your efforts to build IGC consensus on JPA.
Despite some concerns in specific comments, I do support in general "IGC
BELIEVES THAT SUFFICIENT PROGRESS HAS BEEN MADE IN THESE AREAS FOR THIS
TRANSITION TO TAKE PLACE."

In terms of specific points addressed by previous contributors on JPA
thread, let me share my perspectives based on my exposure to ICANN since
1999.

As Milton and APC addressed we four principles suggested by DoC do not seem
to be applied to the IG model appropriately as of 2009. Both "private and
bottom-up coordination" and "representation" highlighted the role of
"private sectors" therefore no space for public sector or state actors. This
situation indeed led to so-called vacuum scenario of "permanent
accountability mechanism" in case of USG's fadeout. Down this
road, substantial emphasis on the role of public sector should be more
discussed.

I have strong concerns in APC's proposals that were presented
as conditions for JPA expiration. APC presented three tasks to be completed
if JPA is to be expired with USG. 1st, To redefine the role of governments
either in the ICANN process or international treaty. 2nd, In the context of
ccTLDs, as example, to separate global governance from national governance.
3rd, To initiate international treaty between governments in consultation
with other stakeholders.

My first concern in APC's JPA comments is APC's proposals should not be used
as excuses to extend the current situation by conditioning certain
requirements should be met. Such approach sounds nice but in reality it
effectively supports the status quo.

My second concern in APC's JPA comments is APC's second proposal on
separation between global governance and national one in terms of ccTLD
administration. Some basic operational decisions of ccTLDs can be
independently managed at the national level however ccTLDs are globally
networked resource that are not free from global governance at all. If you
are interested in such challenges of coordination between national and
global level, my recent article, "National ccTLD Disputes: Between State
Actors and Non-State Actors", can be of help .

Lastly, going back to Ian's colonial argument, I personally believe it is
better disconnect such colonial legacy as soon as possible. Otherwise, it
will be very diffficult for us to have independent governance after being
tamed by the colonial legacy for too long.

YJ
On Wed, May 27, 2009 at 11:40 AM, Parminder <parminder at itforchange.net>wrote:

> Ian
>
> I can go with your basic formulation for_an_IGC_statement below if we also
> clearly mention that we are as much against a self-governing industry led
> system for governance of any area with public interest implications,
> including IG and CIR management. We can say that we see an ICANN free from
> JPA only as an interim arrangement as ways and means of its legitimate
> oversight are worked out. This should be through the mentioned treaty system
> (the precise wording on this can be discussed here).
>
>  I also think that suggesting an 'international judidical body' for
> adjudication CIR/ related IG issues as a more urgent step would be useful,
> since a full treaty process could take long time. The model and legal basis
> for such a judicial or quasi-judicial body can be discussed. ,
>
> parminder
>
> Ian Peter wrote:
>
> 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> <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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