[governance] FW: TP: city government exercising policy on Google Applications / consumer rights / Consumer Protection Act / trial period

[Paul Lehto]

On 7/14/11, Kerry Brown <kerry at kdbsystems.com> wrote:
> I am indeed a director at the Canadian Internet Registration Authority. [snip]
> I am not against all bureaucracies. They are sometimes necessary. My belief
> is that bureaucracies often become inefficient over time. We should avoid
> creating new ones whenever possible. Elected officials should have a close
> oversight role to ensure bureaucracies do not become inefficient fiefdoms
> that are a law unto themselves.

My overall main point in this thread, contained in both the original
replies and in Parminder's re-posting of the core part of the
argument, is that any time one pursues "absence of government" or the
like as a goal, to the same exact extent that democratically
accountable government steps back from its natural authority and
oversight role, the governance vacuum that is created by that is
essentially always filled by private law and regulation, usually in
the form of corporate contract law.

However, government for the last decade or more has been rapidly
privatizing not only services but government itself, breaking off
chunks of government and handing their authority to private
(nonprofit, usually) corporations. This is one main reason why we
increasingly use the term "governance" -- because "governance"
embraces private corporate regulation while "government" is not
usually understood as including private corporate regulation that has
recently increasingly become the Status Quo. Example: when the
Canadian government delegated to CIRA ccTLD registration powers along
with some of the regulatory power that goes with that area.

In the case of CIRA and similar top level domain registries that are
private corporations, we see an example of the privatization of
government into the hands of a few, all in the name of efficiency and
similar concerns that appear attractive on their face.

While such efficiency concerns for ccTLDs are not entirely without
merit, as President Harry S. Truman said, "If you want efficiency,
you'll get a dictatorship."   In seeking efficiency with CIRA,
Canadian registrants get non-democratic governance, and they may or
may not get the efficiency.  (The attainment of efficiency is beside
the point)

I freely admit that an appropriately enlightened dictator or
aristocracy can make the trains run on time.  Further, if one is
willing to make the government itself into a crime, the former Soviet
Union stands as an example that street crime can be essentially
eliminated, provided a strong enough police state is created.   Simply
put, the cost of freedom from street crime and the cost of achieving
real "efficiency" are too high:  In both, democracy and the rule of
law are eliminated (albeit in somewhat different ways).

It appears to me that CIRA is in fact, as you say, one of the most
progressive of ccTLDs.

But here's why it's an example of non-democratic
government/governance:  On another issue or at another time, you could
say as a director of CIRA "the public interest be damned," and from
the perspective of your duties as a director of a private corporation
called CIRA, there's no consequences for your blatant disregard of the
public interest, unless this statement is unacceptable to those
**within the CIRA corporation.**

Unlike an elected politician, you could say "I'm doing my job the best
I can, and nothing requires me to act in the public interest" and that
would be a true statement (unless CIRA voluntarily chooses for a time
to make "public interest" part of its corporate goals in some form,
subject to later retraction in CIRA's sole discretion...)

In contrast, an elected public servant could never say (without
laughter or scorn), "I'm doing my job the best I can, and nothing
requires me to act in the public interest."

The unavoidable job of the truly democratically elected
politician/public servant is "to serve the public interest."   The
public interest is not the job of any director of any private
nonprofit corporation unless that private corporation wants it to be,
and then only for such limited time as the corporation, in its sole
discretion, wishes to pursue "public interest."

Even when nominally dedicated to "public interest" the private
corporation(s) can define "public interest" as whatever their
corporate crystal ball says it is, and WHAT CAN ANYONE OUTSIDE THE
CORPORATE POWER STRUCTURE DO ABOUT THAT??   Nothing.

With democracy, at least we can vote the bums out, or pass/repeal with new laws.

Sometimes, CIRA (as you point) out may even send a survey to the
registrants whose rights in those domain names (a form of IP loosely
speaking that one day, you still believe, will disappear along with
all other IP) CIRA both restricts as well as governs.  FOR NOW, CIRA
by vote of its directors including yourself chooses to be progressive,
but this "progressive" is not a function of any true or ultimate
accountability to registrants or the public interest.

 The acid test of accountability is whether those whose rights you
govern or affect can act to "kick you out" of office, and also whether
those whose rights you process via arbitration procedures (judicial
procedures) can "kick out" bad procedural rules by CIRA by initiating
law-changing processes.  I previously cited the CIRA rules that
expressly forbid even the combined agreement of a Complainant, a
Respondent and the arbitrators from changing or supplementing ANY
procedural rules without the express written consent of CIRA.  This is
non-democratic, and is basically a form of what is sometimes called
tyranny.  We should not get distracted into a debate over whether it
is smart and wise tyranny or dumb and stupid tyranny, efficient
tyranny or inefficient bureaucratic tyranny.  The point is that CIRA
is private government, and it can do basically whatever it wants to
within the scope of its "domain."

Specific examples of CIRA being "progressive" miss the point, as do
specific examples that may exist of Canadian government passing an
occasional law that impacts CIRA or CIRA procedure.   Neither of these
change the fact that government has been privatized to governance, and
CIRA can and does do whatever it wants to do, and is not
democratically accountable.  CIRA may choose to have a certain degree
of "transparency" but basically this is voluntary and can be retracted
at any time (especially since it would be more "efficient" to be less
transparent).

> CIRA has also recognised some of the problems you have pointed out with the
> CDRP policy.

Would be interesting to know on what specific points CIRA agrees with
my critique.  You mention making things "quicker and less expensive"
but other than pointing to the extra expensive of paying for
arbitrators in addition to an attorney, this was not one of the points
in my critique.

> The
> reason for having a CDRP outside of the judicial system is to reduce the
> cost and the bureaucratic red tape associated with going through the
> judicial system.

More often than not, reducing what most call "red tape" means
eliminating either protective measures previously adopted, or reducing
the exercise of rights. in order to achieve efficiency as a goal.
EXAMPLE:  Laws and regulations are passed in order to "prevent
government waste" by having contractors thoroughly checked out, prior
to getting government contracts.  This seems laudable, but directly
leads to many pages of paperwork, background checks, and delays for
contractors.  Later on, people and media complain (in some other
context, and without mentioning the original concerns) about how
difficult and onerous it is for those poor government contractors to
have to go through so much red tape, and then the "red tape" is
rescinded.

But now, minus the "red tape" which usually has or had at least an
arguably good reason for it, the system is now open yet again to waste
fraud and abuse because people too quickly and easily get government
contracts or government aid, leading to more changes like "checks and
balances" and "oversight" (which are later seen as onerous "red tape"
through the other viewpoint I mention).

Of course, someone can try to cite examples of "red tape" that never
had a reason for it in the first place.  That doesn't change the
dynamic above, whereby "red tape" and protecting against "waste fraud
and abuse" are all too often a kind of yo yo, in both governmental and
private bureaucracies.  We keep flipping between the two, not
understanding the interconnection means a tradeoff is quite often
occurring between eliminating red tape and protecting against waste
fraud and abuse.

Applied to CIRA, I'm saying that effective and efficient efforts to
eliminate red tape will also open the door to further waste, or fraud,
or abuse (of power.)  This won't happen in every case of reducing red
tape, but on the whole it is guaranteed to happen as part of any
systematic red tape-reduction effort.  CIRA's relatively simple
procedural rules for arbitration (19 pages or so) reduce red tape of
detailed rules, but they do so at the cost of giving CIRA and its
arbitration Providers sweeping power to do whatever they want to,
procedurally, in arbitrations.  That's an abuse (of power) waiting to
happen, that has come because of a successful attempt at reducing the
"red tape" of judicial litigation in government courts.

In looking at corporate privatisation of government, I think nobody
should trade in their ballots for empty promises from unaccountable
corporate bureaucrats that they will treat us nicely, if only we give
up our democratic powers of lawmaking and "kicking the bums out" via
direct elections.

To give up direct ballots in favor of the "efficiency" of corporate
privatization of government means giving up the democratic
accountability of rulers that centuries of humanity literally fought
and died for, tooth and nail.  These efforts were, at bottom, to make
rulers (those who exercise power) directly accountable.  Even though
rulers through all of history almost invariably claimed to be doing
what's best, and claimed to have their ears open to the public
interest, history shows that those undemocratic rulers were rarely
doing what's best for the public interest.


Paul Lehto, J.D.

PS Apologies for one error: While I believe I correctly cited in
detail to CIRA policies and provided links, I inadvertently mis-named
CIRA in the opening paragraph as the "Canadian Internal Regulation
Authority" when in fact it is the "Canadian Internet Registration
Authority."  However, in both cases it is the AUTHORITY in this area
of law, it is a form of private corporate government that, even when
it appears for all the world "progressive" accountable to the public
interest, doesn't really have to be accountable at all.


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