[governance] ICANN/USG Affirmation of Commitments

[Paul Lehto]

On 10/7/09, Roland Perry <roland at internetpolicyagency.com> wrote:
> Currently (and for a long time now) it's a rule that cctlds are composed
> of two-letter codes reminiscent of ISO 3166; for example Switzerland =
> .ch ; but there are also 3-letter ISO codes. Within the new gTLD process
> there are debates currently taking place about whether 3-letter ISO
> country codes should also be reserved to the appropriate country).
>
> The decision might be "yes they are" or
>                        "no they aren't" or
>                        "yes, but there can be exceptions".
>
> It's an interesting challenge to get Internet users in general to form
> an opinion about such a thing. If there was a public vote, what do you
> think the outcome would be? Might it help the people decide, if someone
> took the trouble to explain to them what the implications of each
> decision might be?


There are two aspects to your question:

(1) There is the technical mystification question, meaning that
average people don't immediately understand this computer language, so
does this mean that democracy must be subordinated to an aristocracy
of experts?  My question is somewhat loaded you may sense, but what it
is "loaded" with are the rights and principles millions of people
around the world have worked their lives for and often died for:
equality, one person one vote, democracy, self-government by the
people, etc.  These core justice concepts are defeated, and
transparency is certainly defeated as well, by the conversion (whether
necessary or not) of an issue into a foreign language, whether that
language is Finnish, Greek, Advanced Basic, COBOL, ASCII or what have
you.

So I agree there's a problem with everyone understanding the
interstices of an issue presented in a foreign language of any kind.
Just because I were to post, which I could with slight assistance, my
posts concerning an issue of interest to you (as evidenced by your
posts and your domain name) in the Finnish language, and if others
somehow were able to join that conversation in Finnish, you would be
effectively excluded from understanding if you desire to participate
in the debate as well as understanding if it affects you or not.

However, (c) below does not follow at all from (a) and (b) . (I'm
unsure if you intended to assert that they do, but it's worth pointing
out nonetheless):

(a) a government sponsors a "technical resource" corporation like
ICANN concerning the internet as a public resource, and

(b) that ICANN or persons related thereto express themselves in a
foreign technical language relative to most internet users, it doesn't
follow at all that

(c) The inability of the average person to determine if their
interests or rights are affected or if they otherwise desire to
participate in the decision means that those same persons need not
consent to action even in the normal, perceived as minimal but
nevertheless significant ways of participating in elections that
directly or indirectly control governance on the policy questions
involved.

Again, perhaps the tech example you give is as simple as it gets, and
perhaps it presents no real implications for rights.  The problem is
that nobody can take ICANN's word for it, or rather, anyone has the
right in a democracy to judge for themselves rather than accept
something on pure trust.

Granted, the remedies, or recourse, in democracy can be criticized as
insufficient or overly indirect in that one can not directly override
a decision on a detailed issue because there is no federal referendum
process like there is for state law, and thus we can only vote out of
office our Congresspeople and/or lobby them under the implied threat
of the same, ultimately.  And, in turn, Congress can't to an unlimited
degree micromanage every agency or instrumentality that it creates, so
to a significant degree congress's recourse is also limited to the
heavier hammers of defunding and replacing key appointed personnel,
just like the people's remedy is limited to "kicking the bums out of
office" completely in elections, and not to specific issue referenda
on the federal level (a good reform proposal for the future
discussion, I'd say). technical language, just as the Eventually, the
ICANN process will come up with an

> It seems a little harsh to propose firing the entire board, or even the
> whole of ICANN, if the result is not what one section of the community
> wants ("throwing the toys out of the pram" is an expression that might
> be appropriate in those circumstances).

"One section of the community" is not democratically legitimate to
have its way.  It's one person, one vote for the entire community body
politic, or in special cases such as utility improvements with tax
assessments only covering a given area, that subgroup that is
directly, and solely, affected.  (the "solely" affected is strictly
applied, as in the past, for just one example, it's been claimed that
an issue might only be of concern to rich folk, or white people, etc.,
or other offensive subgroup formulations, in addition to ones where
persons that were indirectly affected were defined out of the subgroup
improperly under equal protection).

I explained earlier, up top, why what you characterize as a harsh
remedy of firing the board is necessary -- it's the only power left
for voters, to be sure, to vote politicians out or fire them, and it's
largely the power of Congress, given the practical restrictions
against micro-managing its instrumentalities.

It doesn't follow at all that if the only main power is the "harsh"
power of board member removal, that this is childish unconstructive
stuff and thus somehow not proper.  Even when one hires an attorney or
accountant, they do things "their way" under professional judgment and
ethics, and the client's main right is to fire the professional and
get a new one, if talking to the professional doesn't work out.  It's
the same with employers.  They can't (legally) do the "lesser"
responses of detaining employees without pay for discipline, docking
their pay to cover employee pure mistakes, or whipping or spanking the
employees -- even though some or even many employees might prefer any
or all of these lesser responses to the "harsh" response of being
dismissed or fired.

Hey you know, government employees or public servants are not only
authorized solely by We the People, their salaries are paid for by
taxpaying We the People.  To suggest that under the circumstances our
ability to fire our employees or public servants is a tantrum in a
baby tram is really remarkable in its disregard or rather disrespect
for the people who provide all of the authority and pay for basically
all the bills of government action (for whatever corporate taxes
exist, corporations claim they pass those on to the consumer anyway,
so it's back to the people again...)


> So we enter a situation where a group of Welsh speakers want to be
> assigned .cym (which is a widely accepted abbreviation for Cymru, the
> name of Wales in their native celtic language). To make it easy we'll
> assume it's the democratically elected Welsh Parliament (for there is
> such a thing) which is asking for this.
>
> ICANN is asked to make an exception, because .cym would normally be
> reserved for the Cameroons (as a 3-letter ISO code). If there was to be
> a worldwide public vote on this, how might people align themselves?
>
> Abstain   - it's an academic debate I don't understand, and I can't even
>                find either country on a map.
> Vote "Yes - Why does the Cameroons need a second "cctld" reserved for
>                them anyway, who died and made ISO god? The Welsh deserve
>                a break from time to time.
> Vote "No" - Rules are rules, and this isn't a compelling enough
>                exception. The Cameroons is a nicer place than Wales, so
>                get my vote.
> Should the Welsh and the Cameroons be allowed to lobby for votes,
> stating their respective points of view? Why should the Cameroons have
> to "defend" something (at some financial cost) which they thought was
> secured in their name. Should the Welsh, as the upstart, pay for the
> Cameroon lobbying campaign? And if any or all of these decisions don't
> turn out the way someone who demands accountability was expecting, is it
> such a big issue that you need to be end up firing the Board, if the
> appeal is "successful"?

The recourse or remedy of firing the board reconciles the requirements
of self-government (the essence of freedom and being a "free people")
with the practice of not micro-managing every micro-issue.  So your
example is not well taken above.

That being said, the Cameroon example would be a good application of a
subgroup vote, not a worldwide vote, because the interests, as
presently seen at least, do not implicate world interests.   That
would apply in the event direct democracy is the method adopted by the
people.  On the other hand, if the current US regime of representative
democracy remains the practice, then removal of board members,
defunding, and certain "retaliatory" conditions and procedures
familiar to the US Congress are the recourse, with the US Congress in
turn 100% elected by the people.  In fact in the House, which does not
have appointed interim members like the US Senate does, they like to
take pride that there has never been a member who served a single day
without being elected by the people (or at least apparently so, to
allow for the history of election fraud).  This preserves the nexus of
control in the people.

Should that nexus be expanded? Yes, I think so. But that's not the
issue here, which is should the nexus of control via the people, as
attenuated as it is, be completely eliminated by privatizing ICANN as
"independent", when that cuts off 100% of any claim to legitimacy that
ICANN could possibly have?  Please read the UN Declaration of Human
Rights concerning political legitimacy and note that essentially every
country in the world has adopted this because they know its right.
Even dictators PURPORT to have the consent of the people via fake
elections, thuggery, and the like.

But ICANN, unlike dictators who masquerade as having the approval and
consent of the public, usually via fake elections, ICANN is truly
breathtaking in this staggering respect, given this global context of
democracy:

ICANN **openly** claims its "Independence," an "independence" that,
among other things, must mean independence from any control by the
people of the US and independence or freedom from any control by the
people of the entire globe as well.

That's breathtaking.  It can't be understated.  Even the present scope
of ICANN activity, claimed to be narrow, is subject to no restriction
other than whatever ICANN can contract for, purchase, fight for, or
fundraise for, if "independence" it has. It's now an independent
monster free to rule the globe if it can expand sufficiently, which is
the dream of every multinational corporation -- and ICANN is and
probably will increasingly be multinationally diverse.  I support that
diversity, but let's not pretend it's the only thing of importance,
and let's remember that the most oppressive sweatshop corporation or
abusive corporate actor generally only benefits from a diverse
composition or workforce -- it's all the harder for the workers to
find common ground and strengthens the hand of the employer in that
respect. Diversity is thus necessary but not sufficient but does
backfire in the way mentioned above.
>
> I'd like to hear your views on how accountability should be built into
> the ICANN system, to allow for oversight of the kinds of decisions I
> mention above, so that it encapsulates the "public interest" you seek.
> And please explain in detail how it simultaneously reflects the public
> interest of Wales, the Cameroons, and
> everywhere-thats-not-Wales-or-Cameroons.

Until a global governance system of elections exists, the US
Government has no business ridding itself of its responsibility.  When
an accountable and fair global system is created, the USG should
transfer responsibility and power to this democratic system forthwith.

I've served as an elected official of minor note, drafted regulations
that became law and/or court rules binding on all litigants.  The
recourse, admittedly, for constituents unhappy with my performance is
limited to removal, or perhaps courtroom challenge in a narrow set of
appropriate cases, but i would NEVER be comfortable with removing
these last vestiges of popular control because of what that would turn
me into.  You can call it anything you like except "public servant,"
"public official", "democracy," and "republic."

The technically proper terms for the above forms of governance are
considered name-calling and an insult by many. But what now, when
these names used as insults, actually have definitions that fit the
new posture with ICANN?  It perhaps has become uncivil to tell the
truth with actual precision, though I'll try my best.

So the solution is that we unwind this deal. It's void and of no force
and effect, in the ultimate legal reality, though it's also true that
many statutes stay on the books for years and decades before being
reversed, if they ever are, despite the fact that their illegality or
unconsitutionality has existed from day one of the action, and that
when courts finally declare things void, they are void as of the day
of passage of the law or signing of the agreement or contract.   Thus,
the  contract or affirmations, never having existed in the first place
because it is outside the power of government to assign its job to
someone else that is not accountable (though it can create more equal
protection by representing the entire globe, including the US,
equitably), are a nullity and the status quo is restored in the event
physical assets have changed hands (nothing is deemed to have happened
legally, and more than someone deeding me the moon has any legal force
or effect)

 It matters not the slightest that this is the direction of the past
decade or so, or that Clinton was involved.  Anybody in power of
either party is subject to abusing the power, since power itself
corrupts no matter who has it.

Imagine yourself, if you will, in any country fighting for its
freedom.  I'll take my own country, around 1776.  At the time, Kings
have ruled Great Britain literally not for ten years, but with only
one arguable hiccup, literally have ruled since time immemorial -- all
of recorded history.  They've ruled the American colonies since birth.

In this context, if the passage of ten or twelve years meant it was
"too late" for democracy and/or freedom, as has been suggested on this
list, how could the American colonists, or any other colonists in any
country, possibly justify their freedom (i.e. SELF-government, not
control by others) in the face of the argument "too late, too bad, so
sad?"   Here's how James Otis faced that argument of centuries of
history of "too late":

"Even if every prince since Nimrod had been a tyrant [read:not
allowing self-government but instead imposing  his own ideas], it
would not establish a general right to tyrannize."  The colonists
including Otis, possessed originally of no cannon, no navy, and no
government, ultimately went on to defeat the world's greatest
military/naval superpower and a history of non-self-government that
included essentially all of recorded history for Great Britain.

If twelve years is enough for someone to write off self-governing
democracy in favor of aristocratic or royal rule back in 1776, the
world's Age of Revolutions almost assuredly wouldn't have been
commenced.

Some may find ICANN of little scope, at least until they expand
without checks in place any more, but the PRINCIPLEs laid down here
are applicable globally in a whole variety of places.  I would not
recommend setting down a rule hostile to or acquiescing in a defeat of
democratic rights unless I were prepared to see that precedent
multiplied innumerable other places and times.

Paul Lehto, Juris Doctor


-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026
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