[governance] JPA

Jeanette Hofmann jeanette at wzb.eu
Wed May 27 06:43:08 EDT 2009



Parminder wrote:

[...]
  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.

I would not support such a suggestion. It seems highly unlikely that any 
form of effective oversight could be established after ICANN has become 
independent.

jeanette


  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> 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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