[governance] "Oversight"

William Drake william.drake at uzh.ch
Sun Jun 3 08:57:00 EDT 2012 

Hi Foo

On Jun 3, 2012, at 12:53 PM, Fouad Bajwa wrote:

> I believe it has to do with jurisdictional compliance issues. Which
> country's jurisdiction will this non-UN-defaulting institutional
> setting comply to? How will countries/govts and stakeholders be able
> to go to get something stopped or intervened upon? Will a US FBI
> request be entertained to stop megaupload and apprehend the so called
> perpetrators and IPR infringers to be apprehended in the sovereign
> state of New-Zealand or will they be first extradited to the US under
> international cooperation and then the case brought forward to the IG
> body for shutting down the IPR infringing websites? Or will interpole
> be this IG bodies safe guard for law enforcement and which system of
> international law treaty does interpole follow to be part of this
> system.

I guess I don't quite grasp the connection you're making here.  We're talking about whether oversight refers to the NTIA functions, some broader and centralized multilateral policy making body, or just compliance with international law.  What has that got to do with US IPR law and US-NZ mutual legal assistance treaties?  Are you suggesting that there should be a UN body able to supersede national and bilateral laws?
> 
> The suggestions look good on paper but are not the least bit
> practical.

Which suggestions?

> The IGF? Just another definition of the word impractical.
> As for ICANN, it will create trouble for itself with the kind of
> shenanigans its pulling off as it is clearly an example of politics in
> the buffer zone.

Geez, you spent years flying around the world on IGF's and ICANN's dimes and you think they're both useless?   Can they get refunds? Just kidding :o)

Seriously, what are you saying about oversight, that you'd favor something along the lines of BRICSA*/G77?

Cheers

Bill

PS: *recognizing there are real variations here, e.g. RCSA favoring ITU, BI favoring more multistakeholder models, etc.

> 
> 
> 
> On Sun, Jun 3, 2012 at 3:22 PM, William Drake <william.drake at uzh.ch> wrote:
>> Hi Parminder
>> 
>> On Jun 2, 2012, at 7:20 PM, parminder wrote:
>> 
>> On Saturday 02 June 2012 08:08 PM, William Drake wrote:
>> 
>> 
>> Without wanting to get between you and Milton when you two are having so
>> much fun, this really caught my eye.  From WSIS Phase I to the CIRP
>> proposal, "oversight" has been equated by its proponents with authoritative
>> policy/decision making by an intergovernmental body.
>> 
>> 
>> Hi Bill
>> 
>> You are welcome to partake of the fun.
>> 
>> 
>> Whoopee!
>> 
>> 
>> Ok, on to substantive matters.
>> 
>> US employs the term 'oversight' for the role Dept of Commerce plays vis a
>> vis ICANN.
>> 
>> 
>> Yes, generally for zone file, IANA function, AoC, etc—more delimited and
>> light weight than the sort of broad interventionist policymaking that's been
>> variously described by some G77 & China governments.
>> 
>> WGIG was also clear in using the term 'oversight' as the equivalent to the
>> role played by US Dept of Commerce.
>> 
>> 
>> Having been on the WGIG and debated the matter at length with the half dozen
>> government reps that pushed the issue, I don't think this is accurate.  If
>> you look at their three oversight models, these went beyond the NTIA
>> functions.
>> 
>> Model 1 was for a intergovernmental Global Internet Council (GIC) that
>> would take over the functions of the NTIA, replace the GAC, and
>> *set policies on additions or deletions to the root zone file, management of
>> IP addresses, introduction of gTLDs, delegation and redelegation of ccTLDs.
>> * set policies on international public policy and coordination for
>> other Internet-related key issues, such as spam, privacy, cybersecurity
>> and cybercrime, which are not being fully addressed by other
>> existing intergovernmental organizations.
>> *Facilitate the negotiation of treaties, conventions and agreements on
>> Internet-related public policies.
>> *Foster and provide guidance on certain developmental issues in the broader
>> Internet agenda, including but not limited to
>> capacity-building, multilingualism, equitable and cost-based international
>> interconnection costs, and equitable access for all.
>> *Approve rules and procedures for dispute resolution mechanisms and conduct
>> arbitration, as required.
>> 
>> Model 3 was for an intergovernmental International Internet Council (IIC)
>> that also would take over the functions of the NTIA, replace the GAC, and
>> engage in various policy making activities on IG broadly defined.
>> 
>> Model 4 was for an intergovernmental Global Internet Policy Council with
>> broad policy roles, with the private sector and civil society in observer
>> roles.  Through an Oversight Committee that'd take over the USG roles, It
>> would exercise oversight of a new World Internet Corporation for Assigned
>> Names and Numbers, which would be tied to the United Nations.
>> 
>> And if you want a fuller sense of what was envisioned, read the accompanying
>> but mostly forgotten WGIG Background Report, a 76 pager that wasn't released
>> as a consensus document but compiled a lot of the views in the group.
>> 
>> In every case, and throughout the the various WSIS and post-WSIS
>> discussions, "oversight" has been described as going substantially beyond
>> the scope of the NTIA/USG role.  And unquestionably, substantially beyond
>> just 'ensuring adherence to international law established by a treaty.'
>>  Proactive, problem solving, broad scope, via intergovernmental
>> negotiations, with stakeholders varyingly in some sort of observer/advisory
>> role.
>> 
>> 
>> Do you think this is a role of authoritative policy/ decision making? If so,
>> yes, 'oversight' is that. Though I see it in the meaning of an arms- length
>> role only to ensure, in relatively exceptional conditions, adherence to
>> clearly laid-out legal/ policy instruments. (That US does not have such
>> instruments is a defect in the system.) I dont think who does oversight
>> should impact the meaning of what oversight is.
>> 
>> 
>> Maybe not in principle, but in practice…not so clear.  NTIA/USG exercises
>> one version of oversight that is consistent with its mandate (and BTW, does
>> so in constant communication with other governments, and increasingly tries
>> to channel their concerns when badgering the ICANN board).  Those countries
>> that have advocated international oversight—BRICSA and some other upper
>> income G77 and China members—have consistently advocated another version
>> that'd have a much broader mandate and is substantively wider and deeper
>> either than what NTIA does or what you're saying now.
>> 
>> 
>>  In a similar vein, the IT4C statement for the CSTD meeting also spoke of
>> transferring oversight  from the USG to an intergovernmental body.
>> 
>> 
>> This is a misleading reading of ITfCs statement, but I dont want to divert
>> from the basic discussion here. (I will comment on it later)
>> 
>> 
>> My apologies for using short hand, let me quote in full: "On the technical
>> governance side, the oversight of the Internet's critical technical and
>> logical infrastructure, at present with the US government, should be
>> transferred to an appropriate, democratic and participative multilateral
>> body, without disturbing the existing distributed architecture of technical
>> governance of the Internet in any significant way (However, improvements in
>> the technical governance systems are certainly needed.)  So ok, you said
>> multilateral rather than intergovernmental, but we know these are synonyms.
>> And since improvements are needed, presumably said body would provide them,
>> which means broader negotiated decision making than just what the NTIA does.
>> 
>> 
>>  Am I reading correctly that for you, oversight now just means ensuring
>> adherence to international law established by a treaty?
>> 
>> 
>> Yes, that is what oversight is to me. And this doesnt represent a recent
>> change in position. It was always so for me/ ITfC.
>> 
>> 
>> I'm having trouble squaring the two.  NTIA functions + broader global policy
>> making through a multilateral institutions sounds significantly broader than
>> just ensuring adherence to international law...
>> 
>> 
>>  If so, there might be a few seeds of convergence that could be watered.
>> 
>> 
>> That is really welcome.
>> 
>> 
>> No kidding…we've been arguing about this for 8 years now...
>> 
>> 
>>  I'm not terribly optimistic about a treaty negotiation, but there could be
>> alternatives, e.g. an independent ICANN & global Affirmation of Commitments
>> on zone file authorizations...
>> 
>> 
>> I do not understand what affirmation of commitments is. Can you please
>> explain.
>> 
>> 
>> Do you mean this in some rhetorical way?  I'm sure you're familiar with the
>> AoC and the work that's been done to monitor and increase compliance with
>> it...http://www.icann.org/en/about/agreements/aoc
>> 
>> Among whom would these AoCs  be made? Are these unilateral declarations of
>> good intentions that have no legal basis. I dont see how that would do. But
>> ready to discuss.
>> 
>> 
>> While in legal form it's an agreement between ICANN and NTIA, the
>> commitments are to the whole range of actors involved (I won't say "the
>> community" to avoid annoying you ;-).  Imagine an ICANN in which the NTIA
>> role evolves toward progressively greater minimalism--and if/when things are
>> clearly be done properly and jitters can be overcome—diminishes entirely and
>> ICANN becomes fully independent, with a host country agreement somewhere
>> "appropriate."  And it enters into AoCs with the global community, perhaps
>> including actors that don't choose to participate in ICANN.  For example, it
>> swears to never attempt to remove countries from the zone file even in times
>> of conflict (who knows what root zone operators outside the US would do even
>> now...).  And so on.
>> 
>> 
>> (Why are we so bothered about short or even medium terms chance of success
>> in laying out what we think is the right thing to do. If a treaty is the
>> right thing to do, lets just say that. Lets not take the cover of
>> pragmatism. After all what is the near/ medium term chance of all countries
>> adhering to human rights, or of eradication of poverty. However we do make
>> our positions about which way the world and its insitutions should go
>> independent of such assessment. Our constitution writers wrote those lofty
>> ideals and built institutional designs looking far ahead, didnt they.)
>> 
>> 
>> I'm not bothered, I'm just unconvinced it's the least bad option.
>> 
>> My point is, whether it's zone file changes or FaceBook policies on nudity,
>> why can't we think a bit more expansively about institutional options than
>> just defaulting to centralized UN bodies negotiating intergovernmental
>> agreements?  Why not focus first on what needs to be done, and consider the
>> range of possible forms that might help do it, especially if some are less
>> likely to meet immediate political resistance?  Why not do campaigns around
>> specific issues, and make better use of the IGF?
>> 
>> Cheers,
>> 
>> Bill
>> 
>> 
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> 
> 
> 
> -- 
> Regards.
> --------------------------
> Fouad Bajwa
> My Blog: Internet's Governance: http://internetsgovernance.blogspot.com/
> Follow my Tweets: http://twitter.com/fouadbajwa


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