[governance] multistakeholderism

[JFC Morfin]

Paul,

to try to go "fast" on this new (last?) round I interspread some 
comments. Do not take them as opposition.  I understand our premises 
as different. Mine is that the Internet (and Internet related 
society) Constitution is in the (binary) code, and I feel yours is 
that the Consitution is in the voted codes and International 
declarations and treaties. Where we can join is in accepting that the 
binary code may have the voted code as specifications (what the WSIS 
missed due to the absurd political denial of participation of the 
IETF), provided lawmakers and developpers could talk to each others.

This means that some in each group learn the other's language, that 
each group comprehend the increasing weight of the lead citizen 
users. i.e. users who are able to redesign technology to suit their 
own needs, who wish to do it for the best of their fellow citizens, 
and who are currently doing it (nobody can yet know if they will 
succeed or if they will not blow-up the Internet). The same as FLOSS 
does it for applications.

At 02:02 22/08/2010, Paul Lehto wrote:
>JFC and all,
>
>I'll try my best to respond to your main points and give a concise
>response, but they are numerous and interweaving is getting
>complicated, so I'll respond below to what I read as your core
>contentions, trusting you to correct as necessary.  I conclude at
>bottom by suggesting that rapid progress 'on the ground' in specifics
>can be made, but it is enormously important what arguments are made
>and how issues are approached.  (the mountain is climbable, but only
>has one two or three routes up, you can't go any old way...)
>
>First, like you among other things I write and speak about democracy
>and elections and political theory and talk to thousands of people
>about this each year. I've worked for state senators and congressional
>candidates, interned for US Senators, been elected to governing boards
>and appointed by Supreme Courts, etc.

For thirty years+ I talk to technicians, lead-users, private and 
public operators, and I also keep talking with end-users to check 
that what I say make sense to them, while I certainly accept and 
agree it does not make much sens to people in the middle.

>The most important of these is
>talking to the "real public" so to speak.   Far from feeling "all
>alone"

I am feeling alone as a fighter/doer/builder.

>  when I'm out among business and citizen groups like Kiwanis and
>the League of Women voters, I don't find anything but unqualified
>support and passion for these values, which are not given publicity by
>"the system" even remotely in proportion to the support they have.
>
>The only, and I do mean only, opposition I get is not from the
>intelligent or informed per se, but only the intelligent and informed
>who are in positions of power or would like to be (a large minority of
>"the leadership class" of all political persuasions).

:-) I understand. 15% of the American think they belong to the 
richest 1% of the population and 30% that they will belong soon.
Opposition I get is more "interesting, but there are other matters 
(those I know or vote about or I control)".

>  But, that's
>understandable in part because I "preach" accountability of
>governments and (rhetoric of accountability aside) nobody in
>government or industry likes to actually be accountable -- it feels
>like "harassment" of a sort even though it's justified -- makes people
>squirm like they're taking a test with one proctor for each
>test-taker.
>
>Then, most of the opposition I do find I woudl chalk up not to ill
>intent, but to personal experiences (which are, however, necessarily
>limited) that "educating the masses" is too difficult.  I'll repeat
>that personal inconvenience or even doubt as to whether the education
>will work is no justification at all for denying a person's rights.

This is interesting. My own feeling is that the more educated is a 
person ignoring a subject (like the real nature of the technology 
impact), the more reluctant he/she is to learn from a "non-ignorant" 
educated fellow who would be his/her "teacher", and because there is 
no grarantee that the theory of that "non-ignorant" is the right one. 
While non-educated people start using the technology and understand 
quickly what a better design could be.

>As to rights, y ou've expressed some level of disbelief as to the
>power of human rights law.  WHAT LAW IS HIGHER IN STATUS OR POWER?
>The ONLY difference that can account for other law prevailing is NOT
>the legal analysis -- about 159 countries have agreed most human
>rights laws are "inalienable" in the Universal Declaration of Human
>Rights, meaning they can't be lost, forfeited or transferred even with
>the consent of a person.  Inalienable also means that even
>Constitutional provisions, if in conflict, would have to yield to the
>right that cannot be lost - the inalienable right. The only thing that
>would account for human rights NOT prevailing is simply ignoring or
>suppressing human rights law on the basis of a personal preference
>that is extra-legal and in conflict with the most standard legal
>analysis.

No!
The first thing is that there is no human rights agreed upon for the 
digital ecosystem use.

>Thus, it's a matter of publicity and education ,so perhaps
>we agree on that.
>
>I'm doing that publicity and education and I have a very positive
>experience with my approach.  APROACH matters enormously.  I'm sure I
>don't have the only workable approach but there are many approaches
>that don't teach well.  It is one thing to have intelligence, quite
>another to teach something, so I don't consider it an insult to
>anybody's intelligence or intent to observe, if it applies, that the
>teaching approach isn't effective.
>
>Sure, cultural factors, business pressures, etc., all factor in but
>they are not LEGALLY relevant to the analysis of what the 'highest'
>law is, and we have that law on our side, even if too many judges
>don't apply it.  We unfortunately have to have historical perspective
>that civil rights advances are steady but usually incremental, yet the
>claims being made are always for the full measure of rights - half
>rights usually are not rights at all (like the right to be tortured
>only every other day)
>
>You asked me regarding human rights "Do I really believe this?'.
>Fully acknowledging that many who think they know better and wish to
>be de facto dictator or aristocrats are constantly working against it
>for reasons both good and bad, SURE I believe it.  On two levels: the
>legal level and also in my mind (reason) and in my heart as well.

What I mean is that HR have shown to fail as a protection against 
mechan-isms. Revolutions or wars were necessary.

>The only reason I ponit to all the people who have died in wars for
>liberation/democracy is not declare that my cup of tea but to point to
>h ow intensely MANY people believe that yes, they too have rights,
>they too have dignity, and so ought every one else have dignity and a
>say.
>
>When the "say" is one person one vote, that's the core of democracy.

Yes, but this does not fit our now "anthrobotic" society. USA shown 
they did not depend on votes but on  technical recounts. Democracy is 
a culture to adapt not a detailed process to freeze. The internet 
constitution's (binary code) laws are RFCs. For example, there is no 
king, no president, not vote to publish them. There is rough 
consensus. And as a IETF User, I disagree with this now: it was 
suitable for decentralized Internet, not for a distributed real 
extended word. We need multiconsensus, otherwise rough consensus is a 
democratic violation of the minorities (plurals) rights.

I am not sure BTW that we consider the same "Internet": I extend it 
to all what facilitates intercomprehension, i.e. also the support of 
ambiant and active content and the cerebral and noetical semiotic and 
semantic (Intersem) convergence. Because this what I work on.

>It's also my experience, based on my offer to debate anyone anywhere
>who doesn't believe in democracy (at least in the US) that even when
>people accept, they later withdraw as they start to examine their own
>positions and the prospects of an internet streamed debate with a jury
>and the modest form of public accountability that creates.  There is,
>admittedly, a "ton" of seeming force and bluster but when it gets
>examined in the limited kind of accountability that a debate forum
>offers, people chicken out of the task of attacking democracy as the
>sovereign law so to speak.   This has little to do with me (except
>perhaps my angle of approach) and everything to do with the strength
>of democracy's arguments which were created by past generations and
>actually consciously intended to be principles that would be
>meaningful yet still last for "all posterity."

Again, you talk about a democratic culture, which today is trying 
hard to define what practical democracy may be in a 7 billion 
micro-sovereign-confederated States intergovernance. Technology 
brings humans a large number of specialised and powefull peripherals 
(physical, cognition, decision) that are to be taken into account. 
Democracy has lead to personal empowerment. That personal empowerment 
sometimes crosses the limits of citizenship and replaces democracy by 
diplomacy, policy, etc. and conflicts. The Internet is not a nation, 
it is an high-sea. Laws are different. There is no (elected) 
government of the world digital ecosystem, there may be concerted Governances.

>I personally don't feel a need at all for an Article 31 on internet
>rights.  It's a matter of applying existing law and principles to new
>facts.  It's exactly what I used to do when I was a business
>law/consumer protection/ection law attorney for a decade or so,
>applying the consitution and laws of intellectual property to new
>contexts (technologies).  Sure it's not the easiest task, but it's the
>kind of work a lot of people I know love to do.

Sure. Lawyers. Enjoying their own technology. The same as engineers 
are enjoying keeping the Internet at the 1983 state of the art (no 
change until we introduced one, published through an illustration of 
it, a few days ago).

>That being said, I'm
>not OPPOSED to a such a new article for the internet, but that puts
>enormous pressure to get it exactly right, so that the article is not
>just a symptom of a temporary misunderstanding of the fundamental
>rights at issue.

Would you be afraid? People in the 18th Century wrote most, we 
introduced new ones as we need them. Could we not write this one?

>No matter how detailed the new legal language might be, it is true
>beyond any doubt that talented lawyers can argue any and all language,
>so the fact that human rights laws are also argued and contested
>(sometimes) doesn't really indicate anything at all in terms of
>establishing the superiority of a more detailed specific text.  Any
>such text would, in any event, have the burden of treaty ratification
>by about 159 countries just to get on the same legal level as human
>rights, in any event.

You are a lawyer! Why do you want this 31st article to be written by 
lawyers? It has to be written by people (we proposed one approach) 
then possibly helped by lawyers, politics, cultural entities, etc. 
etc. you know what? By a Civil Society Coalition.

>I admit that I don't understand  your idea of an "update" for
>democracy, it sounds like interior re-decoration.  Fundamental
>principles like Equality can't be "updated', they can only be amended,
>and in the case of equality any amendment would be to create some
>inequality that's claimed legally justifiable, so I'd like to know
>what inequality is legally justtifiable.

That you do not understand how Equality is to be "updated" does not 
imply that it would have to be "amended" in its concept. It only 
means that we have to better make you understand what updated means. 
Let take an example: I am sure you would be upset if you were imposed 
non-updated Athenian democratic rules. These rules have been updated 
along centuries. The update we need is more important because the 
changes we known and will know are enormous. Michel Serres, a French 
philosopher with some good scientific/operational/cultural background 
(French Academy, former Naval Officer, etc.) has a formula I like 
(however I do not agree with all the premises): he talks of 
"hominescence", like there is "adolescence". He says the Homo Sapiens 
Sapiens is becoming the Homo Sapiens Universalis and even Homo 
Universalis. This does not mean that we are to physically/spiritually 
change, but that what others may perceive of us in our environment, 
facilitation apparatus and technically added capacities did change.

>Democracy is also founded upon rule by "all the people" (Montesquieu)
>whereas aristocracies are by less than all the people  Id., Spirit of
>the Laws.  Here again, if the "update" occurs at this level, then it
>is government by less than all the people, and no lnoger democracy.

No. Today, governance is by more than all the people. This is our 
daily experience. Some of this  "more" may be good for the people, 
some may be not.

>The third fundamental axiom is nondelegation or nonabdication --
>elected public servants can't simply transfer the power they've been
>given to their best friend, a favorite corporation, or even an agency
>(without clear standards to govern the delegation, in this last case)
>without violating the nondelegation doctrine -- which basically means
>that the people elected X, and they didn't elect Y.  In the case of
>bureaucracies governed by sufficient standards passed democratically,
>that's not an impermissible  "delegation" any more than a politician
>hiring a secretary is.

This belongs to a Lawyers' doctrinal paradigm not interoperable with 
our today anthrobotic reality. Look, crisis is showing us that the 
very concept of money is to be updated. Something we did not actually 
do in 26 centuries. The concept of law is also to be updated.

>If by "update" you mean simply applying rights to the internet
>technical context and coming up with rules partly or totally
>"translated" into the jargon of the internet so that netizens can
>understand, then my ponit above applies -- it's not necessary but
>could be desirable yet it's CRITICAL that the rights be translated
>correctly and fully, and not watered down as they currently are in
>stakeholder type situations.  On the other hand if by "updated' you
>mean something more fundamental like a delegation of largely
>unaccountable power to internet captains of commerce, no matter how
>strongly motivated to benefit the public, that's not going to be
>democracy any more.

Sophism. The choice is not between legal status-quo and industry 
status-quo, until united people of the world blow them up. The job is 
to keep the word running while insuring an equally enjoyed benefit 
and respect of every human.

>The acid test is how do We the people (or netizens) "kick the bums
>out" who are governing the internet in our name?   THis is also the
>acid test of freedom, because any people that cant' remove the powers
>that be are NOT free, they're totally subject to the will of "another"
>-the definition of a political slave.

:-) This is something as I keep refering to as "e-colonization" under 
the US e-umbrella. Some have engaged in drastic move against their 
perceived roots of colonization, i.e. corruption. I feel that if we 
do not defuse this Spartacus revolt, it may contaminate the entire 
world, without much a result as the true solution is to by-pass 
corruption. The technological tools we now have may help (because 
technical standards work the same for all) because corruption is the 
failure of the law. BTW, this is why making NN a legal issue is dead-end.

BTW no-one runs the Internet, but money runs the world the Internet 
is a part of.

>Whenever people suggest that democracy's outdated I need
>clarification, because IF they're "ok" with that, I'm not sure how
>they can be, unless they can explain why they're "ok" with not being
>Free.

Today's version of democracy does not set anyone free. Tell me who 
you can name a Free person (in a democratic way) in the todays' 
world. This very capacity to be Free has to be restored. In broad 
part we lost it to technology. Either the technology is to be 
corrected and made our protection (and this can only result from 
non-impeached innovation) or technology must be removed.

>  In such a case, everyone is either one of the ruled (a
>"subject" or "political slave' as it were) or else they are one of the
>Ruler(s).  If we have only Rulers and the Ruled,

No. This is what has changed. There less and less Rulers and Ruled. 
There are autonomous entities which are or not permitted to proceed 
by subsidiarity - by would-love-to-be-rulers helped by an outdated 
social paradigm making them believe that they have to be ruled or 
out-laws. Robin Hoods is not an "out-law", he is a "robin", a master 
at a new law, fitting the Sherwood ecosystem.

>then there are no
>'rights' per se but only privileges, even if some might be "extended"
>privileges granted to many or even all by the largesse of some
>philosopher-king rulers (if such exist).  But not matter how nice the
>privilege, it is constantly subject to removal without recourse at the
>will of the king or ruling class.  The average person has no "rights"
>properly speaking. in that case, only privileges.
>
>If by democracy needing an "update" you, in effect, mean that we don't
>really have internet democracy, and the "update" to democracy is in
>fact just a way of making democracy real in this context, then you're
>not changing democracy per se at all in my mind, at least.  In this
>case, in my opinion we ought to be be clear at all times that (a) we
>are not free, yet (b) by rights we ought to be free and democratic.

This is dead end. Democracy was a vision from an other world of 
dialogue, hence for other kinds of people education and facilitation, 
means and issues. This is something we have to appropriately adapt to 
our mainly technically facilited polylogue world.

>The paradox of rights is that they become RECOGNIZED by ASSERTING them
>- they come into legal existence via legal argumentation that they
>*already* exist (whether agument is made to a judge or legislature).
>This makes sense because if the government GRANTS the most fundamental
>rights (as opposed to detail-based "statutory" rights) then those
>rights are insecure totally as against the first power-hungry
>government.  That's why the law of democracy holds that fundamental
>inalienable rights come from Natural Law, or Reason, or the Creator,
>or the Supreme Ruler of the Universe (et al...) -- this allows
>atheists and theists into the same tent and the critical feature is
>that the source fo rights is beyond all governmental control.

This is what is interesting in our time. What I name personnally the 
ALFA Wager 
(http://wikalfa.org/wiki/Le_%22pari%22_d%27ALFA_-_the_ALFA_wager). 
Our pratical capacities come from the machines we build. And in 
coming years from the machines we teach. So, more and more, the 
protection of our rights will depend on the way we tell our machines 
our universe is. If we explain it right we will control our machines, 
otherwise the one who will explain them his leadership will control 
us. So we are better to be convincing, i.e. coherent. Truth is what 
man looks for, consistency is what machines needs. There are chances 
that if we tell the Truth to our machines, this architectony will 
help them to be more efficient and protect us better. Mechanical selection :-)

>Thus, why do I have human rights?  Because I was born human, that's
>way.  No other conditions.  Evn if countries violate human rights
>constantly,when under the spotlight they are virtually always forced
>to acknowledge the human rights, as evidenced by the treaty
>ratification in about 159 countries.

Today, social engineering is a tool to use democracy to violate the 
humanity rights. Better doing something about it :-)

>Finally, there's cause for great hope in that public opinion exerts an
>independent force even in a dictatorship or monarchy (e.g. no dictator
>can long sustain a policy as against 90% public opposition that's
>firm, for example).

There is no opposition between dictatorship and monarchy on one side 
and democracy on the other side (ex. Rome and UK). The opposition is 
with tyranny. This remark of yours denotes an intellectual bias in 
your democratic analysis.

>  Put another way, non-democratic conditions, of
>which we have many, in a sense only wrongfully impose a large
>supermajority requirement on the people in an unfree land, though this
>ability to change is limited to a given issue and generally doesn't
>extend at all to changing leaders.  Here, every poll that I'm aware of
>(outside the "leadership" class in business and government) shows high
>supermajoritarian support for democracy and human rights as long as
>questions are framed even somewhat fairly.

No. Even in Zimbabwe, or in China, or in North-Korea supermajority 
has no legal weight. What has practical weight is a coup. A coup can 
be carried in many ways, anytime. Usually by small groups or one 
single person. IDNA2008 was such a coup. A specialist was Gandhi who 
said: "First they ignore you, then they laugh at you, then they fight 
you, then you win".  This is exactly what happened. Now we have to 
take advantage from the victory. And this calls for help.

>CONCLUSION:  Most people do not know anything approaching a healthy
>understanding of law, including human rights law/democracy law.  But
>using the usual formula of IRAC (Issue Rule Analysis Conclusion) of
>law school the basic principles and laws of human rights and democracy
>can be laid out as the rule(s), the "issue" is the facts of the
>internet, and the analysis and conclusion follow (within some range
>for reasonable debate) fairly readily so long as recourse is had to
>what Larry Tribe calls the "rich sea of principles" that inevitably
>and necessarily supplement any and all law even though they are
>unwritten.

This is the issue. This sea of principles has extended through 
technology, both by what it brought, and by its common facilitation 
of the person's good and bad actions.

>Like another recent poster wrote, we can make fairly rapid progress on
>more concrete things.  I agree, and only insist that the most
>important laws/principles have a place at the "stakeholder" table.
>Does democracy have to beg, or will it be shut out of delberations
>there?

As always in inovation processes: there is first iteration, if too 
slow this may encourage disruptive revolutions that we may avoid by 
better architectural comprehension. Multistakholderism is an 
interesting post-democratic move, but the way it is applied at the 
IGF is a HR violation since people as such are not acknowledged stakeholders.

>Once at the table, if there's buy-in to democracy's principles in
>their entirety (and it would be risky to oppose them outright on a
>rollcall vote) then it's all downhill from tehre for net neutrality,
>provided only that we have enough internet "soldiers" to spread the
>word.  The support for NN is out there,

You do not send people to a battle without amunitions. The first 
amunition in this case is a standing definition of NN that everyone 
can understand: lawyers, people, politics, Govs, international 
institutions, users, and engineers alike.

>so it's really only a matter
>of organize, organize, organize ONCE the principles are coherently
>laid out.  Technical applications of those principles, no matter if
>highly approved and very well drafted, h owever, will not excite the
>passion that it takes to win the battle to organize because they are
>not more or less self-verifying like democracy principles but instead
>rely upon a technical vocabulary, and are experiencing a bad case of
>vertigo induced by the rhetoric that the net changed everything (the
>same vertigo used in the USA regarding 9/11 to turn our country away
>from freedom).

Sophism. There are at least two parties in your scenario: lawyers and 
engineers. Dont reproach engineers what lawyers are doing.

Nobody serious claims that the net changed anything by itself. 
Everything is changing and the net is a part of that change. If it 
was not needed it would not be used. The change creates the need, 
which is addressed by the Internet proposititon and satisfied by the 
use. IMHObservation, it seems that what has really changed is the 
size of the crew of the Spaceship Earth. This had consequences. The 
same kind of changes as when the Athenian democracy was copied by 
much larger states.

>Paul Lehto, J.D.
>
>PS If anyone is interested in this topic, I'm happy to email privately
>or publicly to the list, but it may be best to discuss it on the
>phone, so that if I misunderstand I can be politely interrupted and
>saved from a tangent, and vice versa...

Phone is appropriate for lobbyists, not for research. Specially 
concerning the most important issue for a 7 billion people world with 
at least 22.000 identified language entities!

My intellectual teasing is just for some to actively consider the 
issues in the light of the WSIS consensus, direction, majors 
contributions and missing points. Let me return to my pet hobby: to 
understand the Universe from the Internet experience, and in turn to 
make the Internet "work better" in better matching the Universe's meta-laws.

Best
jfc


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