[governance] rational dialogue on the oversight topic

[Milton L Mueller]

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'?

[Milton L Mueller] Well, yes. You slap everyone in the face with a call to arms that implies we are all idiots, I reply in kind. Now that we've got each other's attention, maybe we can have a rational dialogue.

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.

[Milton L Mueller] OK. US now controls the root and ICANN via the IANA contract. If we are to move beyond that, the US has to take the initiative; i.e., the US has to say, "we are willing and ready to consider a new model." Remember, those were comments in a U.S. proceeding, urging the US to take that leadership.

I can only understand international agreements under international systems, like the UN.

[Milton L Mueller] And, even on this list, we can see how poorly it works when the UN or a UN agency like the ITU tries to take the initiative. It becomes a "takeover" proposal and it plays into the hands of US-based nationalists. And it seems surprisingly easy to get many others to jump on that bandwagon - see, e.g., Avri's recent comments on the ITU. Ergo, "US-led" is required.

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

[Milton L Mueller] I think Bill Drake answered this claim very effectively. That is not what "oversight" means in historical context or to most of the people using it. To most govts, oversight means imposing or injecting their "public policy" concerns onto Internet governance institutions, collectively or individually. So we are back to the "public policy" problem.

Now we all know, or should know, that most govts still believe they should be setting public policy for the internet. (It's in the Tunis Agenda) From years of experience, including especially form watching the GAC and an IGF workshop on that topic, I have come to understand what it means. It means, "we want to alter any ICANN decision to go along with whatever concerns we as national governments have, whatever political winds are blowing us at the moment and whatever lobbyist made the greatest impression on us." It does NOT mean "ensuring adherence to a fixed legal framework." Ensuring adherence to a legal framework is more like what courts do, not the politicians and ministers/govt bureaucrats who would staff an "oversight agency."

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.

[Milton L Mueller] Yes and no. Yes, I agree that codifying FoE and antitrust is in effect a policy. No, because the "policy" embedded in FoE and antitrust rules is stable, well-defined and fixed, not subjected to new formulation and change based on passing political vicissitudes. In other words, we don't want a committee of governments that reviews every ICANN decision and says "how does this conform to or contribute to my current policy objectives?" Instead, we want a dispute-driven (i.e., bottom up), court-like review process that says, "someone has claimed that this particular action of ICANN violates freedom of expression rights. Is this claim correct or not?"

And if you want to ask me why I believe it is legitimate to codify FoE and antitrust as the relevant policies, it is because I believe those are the correct policies - ones that will keep the internet and the people who use it thriving. I imagine it would be hard to get Putin or the Iranian government to agree on those, which is why I am _not_ in principle committed to a pure intergovernmental process. I think the more-liberal Internet can and should create its own institutional framework and bypass the repressive and authoritarian regimes if and when it can.

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.

[Milton L Mueller] it would be fine for me, I used to believe the same thing, but then people who understand how international law really works convinced me that it doesn't really afford individuals much protection. Show me some cases, e.g., where the international legal system really upheld an individual's free expression rights in a timely and effective manner and I might change my views.

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.
[Milton L Mueller] only with respect to membership and certain procedural rights. I agree that this aspect of the proposal is flawed. There could be better proposals, but I haven't seen one.

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.

[Milton L Mueller] If you are talking about ICANN, I think most of the redress would be internal to ICANN's processes, and thus would be fully international. E.g., the policy making bodies are governed by ICANN bylaws; the Independent Review Process was an arbitration that was not conducted under California Corp. law but under ICANN's own defined procedures. I am just talking about falling back to Cal. law for some basic forms of accountability regarding procedure and membership.

The FTA argument is a red herring, has nothing to do with me or my position or what we are talking about here.

Your turn.


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