[governance] Hmmmm... Google: "Internet Freedom!"... (from taxes?

[parminder]

On Friday 07 December 2012 09:39 PM, Milton L Mueller wrote:
>
> So, you object to the use of the term 'US exceptionalism'! You are  on 
> record asserting repeatedly that you think ICANN should continue to be 
> subject to US laws, at least in the areas of regulation of 
> non-profits, competition and FoE...... presumable more...... (in any 
> case an entity is either subject to a jurisdiction, or it is not; 
> there are no choices available for an entity to be subject to some 
> laws and not others).
>
> */[Milton L Mueller] One last attempt to salvage an informed, honest 
> discussion of this issue./*
>
> *//*
>
> */I am on record, and have been for years, for favoring the 
> DE-nationalization of ICANN. Which means that I view the US govt the 
> same way I view any other govt, I want them out. This is not “US 
> exceptionalism” but its opposite. /*
>

Right! Lets inspect your arguments below which you cite in defence of 
what you claim is your consistent view on de/inter-nationalising ICANN. 
Going through the two arguments you present, one can quickly see that 
they lead to no proposal for any action or change. They run in a circle 
around themselves and end where they start from - keeping the essentials 
of the status quo intact, with ICANN staying as it is - subject to US 
oversight and jurisdiction. Correct me if I am wrong and if you indeed 
have a roadmap to take ICANN out of US oversight and jurisdiction (but, 
pleeaassee, dont tell me to "go, read my book"!)

> *//*
>
> *//*
>
> */On the issue of ICANN’s corporate home, the position is a bit more 
> complex, but if one is interested in real discussion rather than 
> posturing, it is not that hard to figure out and to debate the merits:/*
>
> */a./**/If ICANN is incorporated as a private entity, it will have to 
> be in one jurisdiction. As jurisdictions go, there is nothing 
> intrinsically worse about the State of California than other 
> jurisdictions. It may be better than many others. Yes, this means that 
> US jurisdiction has more influence in some types of disputes than 
> others. But special status for the home jurisdiction would be true 
> regardless of where it is incorporated. So if Parminder or others 
> would like to make a case for another state or nation-state 
> jurisdiction, let them do so. So far, no one has./*
>

We all know of organisations that have immunities from the hosting 
country jurisdiction, dont we! Dont know why you ignore that fact. 
Asking me and others to make the case for ICANN being subject to other 
country jurisdiction instead of that of the US, you know well, is 
entering into an argument that will lead nowhere. And so the ICANN stays 
where it is!

I dont think ICANN should be subject to any one country's jurisdiction - 
however good it may be, and whether I have a voting right in that 
jurisdiction space or not.... That would be undemocratic... I have also 
not the least doubt that if ICANN was indeed located, say in Delhi, 
subject to Indian jurisdiction, neither you nor other Americans would 
have accepted it. I repeat, I have no doubt whatsoever you would have 
been vocally protesting against it. Can you honestly say you would have 
accepted it! (I have asked you this before.) Here, I am merely asking 
you to be consistent, and not promote US exceptionalism, and then 
present defensive arguments that you know are patently facile.

As for whether indeed US jurisdiction is the best among all countries 
for HQ-ing ICANN - it can in fact be shown that it is among the worst... 
You of course know that the US has one of the worst records of adherence 
to international law. In addition, there are other issues that can make 
the jurisdiction of many other countries much better for ICANN - like 
better public domain / IP regimes, software not being granted patents 
(which can check outrages like Verisign patenting essential DNS related 
technologies) .... one can give so many examples. But would any number 
of them really convince you or other Americans to take ICANN to the 
jurisdiction of another country. You know it wont; then why are you 
posing a false argument.

(BTW, almost all non USians by instinct seem to agree that Geneva would 
be better jurisdiction than any place in US for ICANN. But does the 
strength of and support for such an argument make any difference!)



> *//*
>
> */b./**/If ICANN is not incorporated as a private nonprofit, but as an 
> international org under international law, there are real concerns 
> that ought to give any internet freedom advocate pause:/*
>

This one is rather more serious argument to take forward...

> *//*
>
> */a./**/International orgs can be _less_ accountable than a private 
> organization./*
>

Accountable to whom?? This is the key question. To US, US citizens, US 
courts??..... No, we want accountability to the people of the world.


> */Parminder dismisses this concern by waving his hand and saying that 
> he wants the international treaty to make sure it is accountable. My 
> response: good luck with that./*
>

Well, if an international treaty is such an impractical idea,  why have 
you been advocating it  - right from when we worked together on the 
'framework convention for the Internet' idea to your cited 2009 paper 
which again calls for an international treaty.  What happened between 
2009 and now that has made you so completely reverse your position. It 
is you who owe others an explanation rather than pooh poohing those who 
just have been consistent about the treaty proposal....

> */Give me one real-world example of when that has worked, and you 
> might get some traction in this debate./*
>

You give me one example of where actual multistakeholderism has worked 
in substantial global policy area (no, ICANN does not do substantial 
policy of the kind I am speaking of here). However, this does not stop 
us anyone asking what they think is right. You yourselves have written 
often that Internet indeed presents an entirely new context - so, why 
base your defensive argument on asking me for instances 'where it has 
working before'. Whereas, the fact is also that international treaties 
have really worked in countless areas - they have regulated global 
trade, IP regimes, maritime system, nuclear disarmament..... many more.

BTW, would you tell me an instance of where trans-nationalism - which is 
what you advocate now, of which many elements I support - has worked 
before? Does it stop you from advocating it. One of the weakest and 
worst possible argument in defence of the status quo in a new space like 
IG  - oft used on this list - is 'show me where it has worked before'. 
And whatever you try to show can be demolished with facts about the new 
context being quite different - which of course it is.. and so it goes on.

> *//*
>
> */b./**/The current political situation in the world suggests that the 
> negotiation of such a treaty would become an opportunity for states to 
> assert more control of the internet. This is clear both from the 
> behavior of ICANN’s GAC and from the behavior of many states in the 
> WCIT. /*
>

The states always had the same proclivities. Do did you suddenly 
discover this fact post 2009, when you last asked for an international 
treaty? If anything, there are more democratic states in the world today 
than in 2009 - Tunisia, Egypt...


> */Supporters of international law such as Parminder need to explain 
> how they get a treaty and international law that bypasses these 
> problems. So far, they haven’t./*
>

OK I will. Meanwhile, if you tell me how you thought till 2009 that a 
treaty could be achieved bypassing these problems, maybe I can use some 
of the same arguments :)

More seriously, this is the same issue as I discussed before. I have to 
somehow before-hand prove something that I have no devices to do. Any 
kind of governance system comes with some possibilities of negative 
impact. We just can try to do our best, and not agree to the wrong kind 
of things. And the struggle will be perpetual. But using this argument 
to stop any movement forward is just self serving for status quoists, as 
it always has been. I will give you two illustrations.

In 1940s, during India's independence struggle, the British could well 
pose the question - what is the guarantee that a democratic India, with 
more than 80 percent hindus, and such communal divisiveness, would not 
immediately sink into extreme communialism,and change its laws to 
traditional hindu practices etc etc..... There of course was real danger 
of all this.... But one could only respond by insisting that we will 
keep struggling for progressive constitutional principles and their 
actual implementation and so on.... A similar issue faced India when in 
the 1980's India went for what is perhaps the world's most comprehensive 
village self governance system... There were fears of chaos, further 
increase in corruption.... and partly these things did happen.... we 
keep struggling to correct these distortions, but no one thinks we 
should not have gone for the decentralisation exercise.

I hope you have got your answer... The only way is to keep the struggle 
up and try and ensure that any global treaty doesnt get problematic 
things into it. BTW, wasnt it you Milton who has been saying for so long 
now that nothing threatening is going to happen at WCIT, because inter 
alia, many progressive countries wont agree to bad proposals. Same for 
the treaty that could internationalise ICANN, which will in fact protect 
and legitimise its basic model of technical coordination and technical 
policy making system.


> *//*
>
> */c./**/IGP has filed formal comments suggesting the outlines of 
> international treaty principles that would limit ICANN’s powers and 
> help to secure internet freedom, while retaining its status as a 
> California corp. In other words, Parminder’s charge that we are 
> apologists for the status quo is simply wrong./*
>

Very well. IT for Change supported IGP's comments at that time (except 
for the part which sought a US initiated treaty, but about that later). 
Indeed that submission proved that you were not 'apologists for the 
status quo'. But the problem is that you have since retracted from that 
position (havent you) and that makes this label stick I suppose :)

> */However, in light of the points made in b) above, we don’t hold out 
> a lot of hope in the current situation for such a treaty to be 
> ratified. /*
>

Perfect instance of wanting to have the cake and eat it too!   You want 
to be judged non US apologists for making a treaty proposal, but you 
also want the treaty proposal not to go ahead....

Global politics is complex. Things move forward because people know they 
have to give something to get something. If real internationalisation of 
ICANN was offered we can get so much from all the countries on the 
table.... In fact, North's and civil society's positions at ITU would 
also have looked much more justified if on the parallel a real way 
forward on internationalising ICANN was being offered. Sorry, Milton, 
you seem just to have decided some things privately, between 2009 and 
now, and now getting impatient with people who ask for justification. It 
is you who much give the justification for such a radical change of 
position.

> */Note the fate of Brazil’s IG principles which despite widespread 
> civil society support cannot make it through the govt./*
>

The below is from the article that was quoted in the initial postings on 
IGC list on what was happening to Marco Civil in Brazil

" Brazil’s main telecommunication companieslobbied hard against it, 
arguing it was contrary to the principles of the free market "

So free market argument (to prevent net neutrality) was the main one 
used against Marco Civil. So, Milton, you have perhaps picked a wrong 
example to make your case :) . Indeed there will be discussions around 
what principles are the ones that would frame the relevant treaty, and 
we need to allow that process and discussion to take place, not 
anticipate it and kill it as you are proposing.

> */Until there is strong support for the type of principles we put 
> forth in our proposal it would be foolish to push ICANN into an 
> international treaty negotiation./*
>

How would any such support be built and demonstrated? Things happen when 
we face the moment of truth - and treaty drafting will be one such.... 
We all know US would not easily agree to net neutrality (they blocked it 
from OECD Internet policy principles) . Similarly, China and due process 
in content regulation.... but these issues need to put on the table first.

Anyway, and this is important, I think a treaty for internationalisation 
of ICANN should stick to the bare minimums and need not necessarily go 
in depth into all such contentious issues. In fact, such a basic 
framework for internationalising ICANN could be a low hanging fruit (I 
know some people will jump at this suggestion) which is something I 
think civil society should initiate. This is because the moral 
justification of internationalising ICANN is rather apparent and 
inherently incontestable. Why dont we start a civil society process to 
develop a politico-legal framework for internationalsing ICANN?

> *//*
>
> */Happy to engage in any reasonable discussion of these points. /*
>

Hope you do. look forward.
>
> */Not interested in any tub-thumping about the US and warn others not 
> to be misled by caricatures and oversimplifications peddled by people 
> with no real ideas.
> /*
>

Just being yourself Milton. I am providing real ideas, and have real 
positions. They just dont seem to suit you.

parminder

> *//*
>

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