[governance] Oversight

[parminder]

John

I agree with every single thing you have written in this email; only you 
have put it all so much better than I have been able to :).

I do not blame ICANN for being clumsy in dealing with public policy 
matters, because, as you stress, that is not its mandate. Yes, ICANN 
needs better and clearer public policy guidelines and principles to be 
able to do its core technical function. (Tunis agenda calls for 
developing such principles as one main function of 'enhanced 
cooperation'). However, those within ICANN and outside who ask for full 
autonomy of ICANN (from authoritative public policy guidance), need to 
explain how do they seek to expand ICANN roles into public policy areas 
as well. On what basis, and what would be the required changes to the 
ICANN?. I do see that you are completely against any such expansion, and 
so am I.

Either ICANN does its own public policy, which is against its current 
mandate, or public policy directions come from outside. My case is that 
the present manner in which it gets its public policy directions is very 
problematic, unbalanced and undemocratic. I do give quarters to some 
level of bottom up and p2p consultative public policy inputting, but 
often that leaves the final decisions so fully and unaccountably in 
ICANN hands  that it practically does its own substantive public policy, 
which, somewhat expectedly, mostly results in not too good results. The 
inept manner in which ICANN has dealt with the many public policy issues 
around  new gtlds being a case in point. Over this year, we would hear 
much about this 'case'.

You highlight very well the kind of difficulties that the ICANN system 
faces with regard to public policy issues impinging on its technical 
coordination work. Operationalising 'enhanced cooperation' is precisely 
about addressing this 'key problem'. However, it is not the idea to put 
some governments in charge who could be giving ad hoc directions to 
ICANN. We need a much more sophisticated response. My proposal was 
something like the following.

A UN CIRP like body - without a direct oversight role like at present 
with the US -  does soft policy work, develops policy principles and 
frameworks, explores spaces of possible agreements, enable treaties when 
required...... basically does the task  that you describe so well as 
follows,

    "If you're seeking consensus on important and complex public policy
    matters, it  would be best to drive that to resolution down to basic
    principles of agreement elsewhere before attempting to apply those
    principles to technical matters such as protocol development and
    identifier management." (John Curran)


Then these policy principles and frameworks are variously communicated 
to the ICANN system. An internationalised oversight board takes over the 
oversight function currently performed by the US, but has a minimal 
direct inference possibility. It does review of structure, process, 
mechanisms etc, but also conveys the authoritative public policy 
principles developed at the UN CIRP  to ICANN.  A GAC like body is the 
more operational and regular interface with ICANN, giving advance 
inputs, review of decisions etc, based on the coded public policy 
principles. It would work more or less as at present but maybe with 
improved and better structured relationship with ICAAN board and other 
bodies.

And as a final judicial review forum, the International court of justice 
can be asked to have a separate division for Internet related matters, 
as it does for some other areas.

parminder

On Sunday 01 July 2012 09:50 PM, John Curran wrote:
> On Jul 1, 2012, at 8:19 AM, parminder wrote:
>
>> John,
>>
>> You provide a good view of how some public policy issues that get 
>> encountered in various tech coordination activities get addressed. 
>> There indeed are some existing ways in which the concerned public 
>> policy considerations are soaked in from the environment, if in an ad 
>> hoc manner, which, I understand is also how you see it.
>
> I believe they get incorporated in an ad-hoc manner only because there is
> a lack of consensus on how and where "social and public policy norms"
> are documented by society.    Having no clear expression of public policy
> requirements and having dozens of expressions of public policy 
> requirements
> are both equally bad, as what is needed for guidance in technical protocol
> development and identifier coordination is the input of single statements
> of which "social and public policy norms" are applicable.
>
> For example, a clear requirement exists with respect to privacy of 
> residential
> data within Canada (due to strong data privacy statutes) but it is not 
> quite as
> clear in the US nor in the 25 Caribbean economies in the ARIN region. 
>   As we
> have to make regional policy which works for everyone, the resulting 
> policy on
> level of information in the public (IP) Whois directory basically must 
> consider
> the clear policy requirements from Canada and allow for the redaction 
> of that
> information if and when service providers assign large IP address 
> blocks for
> individual subscribers.  We have no conflicting guidance, so it was 
> easy to
> accomodate as required.
>
> Having clear guidance on the social and public policy norms lets those 
> working
> on Internet protocols and protocol identifier management actively 
> avoid having
> conflicts with such guidance.  It's still a difficult job, but it is 
> doable, in that the
> various implications of protocol or identifier management can be held 
> up against
> the received guidance to make sure that the final implemented 
> processes for
> identifier management will indeed be compatible.
>
> When no such guidance or (almost as bad) multiple conflicting guidance 
> is received,
> then you are left with a predominantly technical community attempting 
> to work on
> social and public matters to fill the gap in social and public policy 
> norms.  The job
> will get done, but It's not pretty, and may not make anyone happy with 
> the result.
>
>> You do rightly stress 'ICANN's limited mandate of technical 
>> coordination.   Increasingly, it appears to me that the concerned 
>> public policy issues are becoming more important and at the same time 
>> more complex, and the manner in which they get incorporated in the 
>> technical coordination function may increasingly be inadequate.
>
> Parminder - It is inadequate, but that's because it is the wrong tool 
> for the job.
>
> If you're seeking consensus on important and complex public policy 
> matters, it
> would be best to drive that to resolution down to basic principles of 
> agreement
> elsewhere before attempting to apply those principles to technical 
> matters such
> as protocol development and identifier management.
>
>> The oversight issue is about developing an appropriate and adequate 
>> method for incorporating the relevant public policy concerns in 
>> technical coordination functions.
>
> There are two uses of the term "oversight" with respect to ICANN:
>
> 1) Oversight of ICANN in the overall performance of its mission
>
>     This is how the term "oversight" is used by many in the Internet
>     community, and has been historically been a role held by the USG
>     via the JPA, and has transitioned to the reviews performed under
>     the Affirmation of Commitments.
>
>     This is about reviews of structure, process, mechanisms, etc.
>
> 2) "Oversight" of ICANN during the policy development process
>
>     This is a colloquial use of the term "oversight", in that it would
>     probably be better phrased "Monitoring and guiding ICANN when
>     it is performing policy development to produce politically useful
>     outcomes"
>
>     The problem with such "oversight" is that it actually presumes
>     that ICANN is an appropriate and useful forum for working out
>     all of the world's previously unresolved public policy matters.
>     For example, if governments and civil society had a single
>     clear norm for what constitutes "decent speech", then its
>     application in a technical setting would be straightforward.
>     Absent a clear social & public policy norm for such content
>     determination, attempting to re-address the same question
>     within ICANN is not likely to produce any better outcome.
> Let's recall one key statement from ICANN's core values:
>
> "11. While remaining rooted in the private sector, recognizing that 
> governments and public authorities are responsible for public policy 
> and duly taking into account governments' or public 
> authorities' recommendations."
>
> Taking such recommendations into account _requires_ that there
> is either a single consensus input received or indeed a high degree
> of commonality among all of the recommendations received.   I do
> believe that ICANN must respect the guidance in these cases, but
> from what I can determine it is not in ICANN's mission to bring about
> consensus in social and public policy matters where none exists today.
> (and If ICANN had such amazing abilities, then we should have it work
> on world hunger and conflict before worrying about Internet matters...)
>
>> But doing it in a manner that is not ad hoc, based on proper law and 
>> policy frameworks arrived at through a transparent and participatory 
>> process, and employing duly laid out procedures and methods.
>
> Full agreement on the above statement - insuring this is a major part
> of the current review processes.
>
>> At present there is a kind of schizophrenia whereby ICANN is caught 
>> between its own and other actor's assessment of it being basically a 
>> technical coordination body with limited capacity of dealing with 
>> public policy considerations (which is inter alia also NCUC's stand) 
>> and the increasingly important and complex public policy 
>> considerations that are implicated in many technical coordination 
>> functions. How to solve this conundrum is the main issue that we are 
>> facing here.
>
> If the public policy considerations that you reference are areas where we
> have commonly accepted and documented societal norms, then those
> documents should be formally submitted into the policy development
> processes and ICANN should be held accountable, per its core values,
> for taking them into consideration in setting policies for technical 
> identifier
> coordination and management for the Internet.
>
> If the public policy considerations that you reference are areas where we
> lack commonly accepted and documented societal norms, I would think
> that bringing governments, civil society, and businesses together on 
> these
> matters first would be a high priority, and a task much larger in 
> scope that
> ICANN's mission.
>
> FYI,
> /John
>
> p.s.  Disclaimer: My views alone. The thoughts expressed may not be 
> suitable
>         for any specific purpose, including world domination.  This 
> forum may not
>         grant time to responsible parties with opposing viewpoints. 
>  May cause
>         mental staining; please try out on an unexposed section of 
> mind first.
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