FW: [governance] CSTD meeting on enhanced cooperation

[parminder]

On Friday 01 June 2012 09:15 PM, Milton L Mueller wrote:
>
> I'm re-sending this because Parminder has ignored it. Really 
> interested in rational dialogue on this topic.
>

Oh, I did not realise you are really interested in a rational dialogue 
on this topic!

Because your email basically rejected my proposal on ICANN oversight ex 
ante as not worthy of consideration, since I dont attend ICANN meetings, 
I am "oddly ignorant of post WSIS critiques of 'oversight' and 'public 
policy'" (whose critiques? yours?), and you wonder "whose agenda is it 
(meaning, my proposal), because it is certainly not civil society's". 
And after this summary rejection, you pointed me to your own submission 
on 'ICANN transition' of 2009, apparently as the only proposal worthy of 
discussion. Do you think this lays the ground for a 'rational dialogue'? 
(BTW, you may remember that ITfC supported the shorter advocacy 
statement that you prepared at that time, and so, yes, I am aware of 
this longer document as well.)

I understand, basically you want me to comment on /your/ proposal of 
'ICANN transition' at the refered link 
http://www.internetgovernance.org/wordpress/wp-content/uploads/IGP-June09NTIAcomment.pdf 
. Sure, why not.

Your submission says, there should be a US led international agreement 
on ICANN status and role. I dont understand by what does 'US led' mean. 
Pl explain. I can only understand international agreements under 
international systems, like the UN. An international agreement requires 
a international body as a guarantor, it cannot be guaranteed by a party 
national government alone. However, we, in general, do agree that 
ICANN's status and role should be given and guaranteed by an 
international agreement.

Quoting your proposal

            "Governments should be involved not as "oversight"
    authorities or "public policy makers" but as backers of a
    shared legal framework that maintains accountability and gives
    non-state actors a legal basis for settling important disputes."

I see 'oversight' as largely meaning  as backing and ensuring adherence 
to the relevant legal framework (arrived through the international 
treaty spoken of above) and maintaining accountability.  I quote from my 
email / proposal "... this body will have a very narrowly defined role, 
with duly laid out procedure to fulfil it. There would not be much 
proactive work for it to do at all. " How do you think this corresponds 
to your observations on my proposal, and I quote you

"The big difference is that you seem to want an "oversight" body with 
the arbitrary power to make policy from the top down and impose it on 
ICANN processes and communities, whereas our proposals are designed to 
prevent just that."  ????

In any case, in your 2009 proposal you seem to be quite confused between 
your hatred of 'public policy' from above and at the same time putting 
in clear terms that ICANN should be subject to FoE regulation, 
anti-trust law etc (through the international agreement). This is 
subjecting ICANN to top down public policy, isnt it. Yes, public policy 
written clearly in an legal instrument, with a clearly laid down process 
of enforcing it. Nothing more have I asked for. However sometime what is 
legitimate public policy may have different versions that just the 
Milton one :). But still we agree basically this is what it is.

Then you seek " an appropriate body of national law under which ICANN 
should operate", whereby you mean an body of US law. No we cant agree 
here US law is made and can be changed by US legislature, and that 
doesnt work for the rest of the world. The appropriate body has to be of 
international law.

You correspondingly want any non US person or entity to use California 
law to seek redress, if required, from ICANN. Again doesnt work for me.

I must mention that it is strange that you, and the US, would want 
people and other entities of the rest of the world to resort to US 
national law to seek remedies vis a vis management of a global resource 
at a time when US is going around promoting FTAs that seek to subvert 
relevant domestic laws of the countries that it does FTA with in favour 
of international arbitration.  Why being so stingy about sticking to 
national law and redress systems in this case. Why cant we have an 
international redress system.

So, whose agenda your proposal is, US government's? (Sorry, could not 
resist it :) )

parminder





> ==============
>
> Some responses to Parminder's views on CIR oversight
>
> It is important to do so, if we have to legitimately argue for 
> safe-guarding existing distributed system of CIR management and 
> technical standards setting.
>
> [MM] Let me begin by pointing out that neither you nor your group has 
> ever attended an ICANN meeting, nor have you sought membership or 
> participation in the civil society representational organs of ICANN, 
> despite many invitations and despite the many battles ICANN civil 
> society has needed help to fight. Thus, it is surprising to see you 
> eager to redefine the whole structure suddenly. One wonder whose 
> agenda it is, as it is certainly not civil society's. Also, some 
> awareness of the behavior of the Governmental Advisory Committee 
> within ICANN might be sufficient to convince those with a 
> reality-focused, objective perspective that the types of "oversight" 
> you are calling for can be troublesome, to put it mildly. I'd 
> encourage you to make better use of the many resources - experience, 
> expertise, and networks - that already exist among ICANN-focused civil 
> society, before developing yet another manifesto.
>
> The other option is that developing countries lean towards the ITU, 
> which can shift the terrain toward development of a new top-down, 
> centralised and bureaucratic CIR management/ tech standards model.
>
> [MM] Many developing countries have "leaned toward the ITU" for years. 
> It is unlikely to affect anything. If the case for your proposed 
> changes is fear of this alternative, it is a very weak case.
>
> (1) Shifting oversight of CIRs from US gov to an international body
>
> [MM] It should not be "international" it should be "non-national." To 
> be "international" is to be an intergovernmental organization, which 
> means _/not acceptable to Internet freedom advocates/_. A smaller club 
> of governments (which has been proposed by European Commission at one 
> time) could be even worse. Oddly, you seem to be completely unaware of 
> the critiques of the whole notion of "oversight," and its sister 
> concept of "public policy" that have been developed in the wake of WSIS.
>
> The path toward accountability and legitimate process in CIRs is 
> _/not/_ going to come from concepts of an additional (governmental or 
> MS) committee providing "oversight" on behalf of "public policy" or 
> "public interest" concerns. On the contrary, as we have learned from 
> the end game of the new gTLD process, the concept of oversight 
> inevitably devolves into a politicized battle among special interests 
> to undo, or re-do, policies emerging from the bottom up process if 
> they don't like the outcome. "Oversight" means arbitrary, politicized, 
> unpredictable and hence unjust and inefficient  process. "Oversight" 
> means imposing another unaccountable board on top of the existing 
> ICANN board, when the problem is that the existing one is not 
> accountable enough. Replacing US oversight with oversight by multiple 
> governments compounds the problem we have, it doesn't fix it.
>
> What is needed are clear rules - rules designed both to restrain and 
> limit ICANN, and to restrain and limit the external forces, including 
> especially governments, who might interfere with ICANN and its 
> processes. IGP made a pretty good start at defining the principles 
> underlying such rules in its filings on the ICANN "transition" back in 
> 2009. 
> http://www.internetgovernance.org/wordpress/wp-content/uploads/IGP-June09NTIAcomment.pdf 
> (See section "Revising the model")
>
> In those comments, you may find a great deal of common ground - we 
> recognize the need for legally binding forms of accountability and 
> that this may need to involve coordinated action among states to pass 
> a treaty. The big difference is that you seem to want an "oversight" 
> body with the arbitrary power to make policy from the top down and 
> impose it on ICANN processes and communities, whereas our proposals 
> are designed to prevent just that. We want the involved community to 
> make policy, within very narrowly defined boundaries, and we want 
> rules we need from governments, and liberal, freedom-enhancing rules - 
> not a blank check to second-guess or re-do or control and regulate 
> people's actions via the Internet.
>
> Milton L. Mueller
>
> Professor, Syracuse University School of Information Studies
>
> Internet Governance Project
>
> http://blog.internetgovernance.org
>
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