[governance] "oversight"

[parminder]

On Monday 04 June 2012 10:21 PM, Milton L Mueller wrote:
>
>
> */[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. /*
>

A very weak excuse, Milton, but I'll pass it, as long as we are, 
hopefully, on the rational dialogue path.
>
> *//*
>
> */ /*
>
> 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 have no problem with your statement as comments in a US proceeding, 
and thus at that i time I did not critique it. But now, in response to 
my email, you indicated the same documents and its recs as the possible 
way to go in the 'international' (or transnational) discussion that we 
started to have on this list, and thus the nature of my responses to it. 
Now, if US led just means, US needs to agree 'we are ready to consider a 
new model' , yes, that is obvious. Although, it is important to note 
that civil society starts proposing models and build moral and political 
pressure much before governments show their readiness to act, and I can 
quote innumerable instances of this..... We dont wait to first see the 
clear expression of readiness before we make our concrete proposals and 
build moral/ political pressure. Also, I was wondering if what you call 
as a US led international agreement will be the kind of political 
fiction like AoC, where US signs something with a private party and 
tries to sell it as an international thing, or it will be the real 
thing, as real agreements between affected parties are, with 
international legal basis and force. With your above clarification, I 
now think it is the latter kind that you mean, but you may clarify.

> *//*
>
> */ /*
>
> 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. /*
>

OK, now I think you dont have in your mind what I would see as 'real' 
international agreements . What exactly is it that you are suggesting. 
Pl be clear. What exactly is the US-led thing you propose. As to how UN 
thing does or does not work, you present a very one sided picture. The 
world in general is not so anti UN as a very limited view of a narrow 
set of very vocal  players in the IG space may suggest. I can show you 
many campaigns from across the world,  very popular and well supported 
ones, that keep calling for a greater UN role in areas like trade, 
climate change, IP, health, human rights etc.

> *//*
>
> */ /*
>
> 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. /*
>

I still think WGIG saw oversight, in itself, in a relatively narrow 
manner, even if connected to broader global pubic policy (GPP) issues. 
We also know that US gov/ US media uses the term oversight in its narrow 
meaning. Now, we cant keep on insisting that this term has to be 
accepted to mean as some the actors we may not agree with take it to 
mean. These are only /some/ actors.... As for 'injecting public policy 
concerns onto IG institutions', you do agree later in your email that 
'FoE and anti-trust' are public policy concerns and they, you insist, 
/must/ be injected onto IG institutions. Milton, the paradox is clear. I 
agree with you that the processes and procedures of developing public 
policy and means of, to use your words, injecting them onto IG 
institutions, cannot be ad hoc, and should be very very clear, process 
and relevant law bound. However, you cant really be serious in proposing 
that what you see as public policy is good and anything else  is bad. In 
essence, this is what you are saying . Lets be rational :).

> *//*
>
> */ /*
>
> */Now we all know, or should know, that most govts still believe they 
> should be setting public policy for the internet./*
>

Huh. So you think that governments shouldn't be setting public policy 
for the Internet! In that case, I must alert and warn you that there is 
someone masquerading as you, Milton Mueller, very active in the civil 
society advisory committee of OECD's CCICP which is one body most active 
in enabling some, most powerful, governments in 'setting public policy 
for the Internet'. You must intervene immediately and stop him. and the 
concerned governments, from doing this most diabolical work.

> */ (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./*
>

Milton, we are slipping here into straight-forward anti-governmentalism, 
as anti-democraticism. With years of experience with the Indian 
government (and I am sure yours would be same for the UG gov) I have 
come to understand the pettinesses of politicians, their proclivity to 
corruption etc etc..... however neither have I stopped engaging, very 
actively, with the Indian democratic governance system, nor have I the 
least doubt that if I were to be a part of the writing a new Indian 
constitution, it would in many/most of its essential features would be 
similar to what it is today.

> */ 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." /*
>

Courts do it on the basis of laws made by politicians/ ministers/ gov 
bureaucrats. As I have been discussing, it is possible to make a CIR 
oversight body with the sole role of ensuring adherence to a legal 
framework, and not allowing it to make ad hoc interferences at all. An 
institutional design that can ensure this objective is possible and lets 
work towards it with faith in global democracy and global institutions.

> *//*
>
> */ /*
>
> 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./*
>

There are many other policy objectives that have long term stable 
political consensus around then in modern political thought and 
practice. You just have a narrow ideological position here, which I cant 
share. But lets at least agree that it is just one ideological position, 
and your above propositions do not stem from any neutral rational logic.

> */ 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?"/*
>

Yes, but again, here is the Milton's version of appropriate public 
policy, and not such that is derived by a due, to the extent possible, 
democratic process..... However, As oft stated now, I do agree that the 
oversight body should have such a narrow 'legality and policy adherence 
assessing' role as you put it.

> *//*
>
> */ /*
>
> */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 understand that you believe these to be the 'only' relevant policies. 
But arent you a bit of bulldozing things here. I believe that some other 
policies are as basic - as, for instance, enshrined in many UN human 
rights instruments. So you think those are not relevant and correct 
policies for the Internet? Just to breach your narrow, arbitrary, 
construction, well, let me just name one - privacy......

> */ 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./*
>

Do you know with what dread the rest of the world reads the 
pronouncement of US's tea party notables.... this is one reason that I 
cant be persuaded by your entreaties that we all just submit to the US 
law. It is easy to denounce a system by pointing to the views of what 
may look like its worst actors, it can be done for any system. You know 
very well that one Russia and one Iran cannot make UN policy, can they?? 
Therefore your above line of 'reasoning' doesnt hold. Do you think the 
non US world is readier to be subject to a US led process then you are 
for a pure intergov UN process. Note however, that my and many other 
proposals on the table on oversight and broader GPP are rather 
multistakeholder. And I said that we must discuss actual elements of any 
MS proposals - for instance, do you see, say, a Microsoft rep play the 
same role as the Brazilain gov rep, for all kind of policy and oversight 
matters?

> */ 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./*
>

And, by the same token, also bypass the unilateral regime of the US with 
one of the the world's worst record of not playing along with global 
rules and standard, and with a rabid IP stance and global design that, 
if implemented, would distort the global economic structure forever. Why 
does these points miss your censure, and  you not see the need for 
bypassing this particular regime, which the rest of the world finds so 
oppressive.

> *//*
>
> */ /*
>
> 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, /*
>

lets build on this agreement......

> */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. /*
>

US law affords even much less protection to me, even if I were to 
disregard my principled opposition to its global application.

> */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. /*
>

We see international legal system increasingly in operation even in 
criminal matter, like war crimes (a different matter that US doesnt 
accept this legal system). Traditionally, UN has mostly given policy 
frameworks that have informed national legal systems, and I know many 
instances, for instance in case of human right, women's rights, that 
these UN policy frameworks have had very far reaching impacts. I havent 
studied legal systems that would have had to provide direct and 
immediate redress - in matters like marine routes and the involved 
international jurisdiction, global trade disputes, IP disputes etc.... 
but I understand that they do work. In case of the Internet, the 
pressing global nature of the problems is a new thing, and as far as we 
are satisfied with policy development frameworks, implementation vis a 
vis to redress etc is an issue of contextual institutional design, and 
that is why, in the present case, we should discuss how the 
international CIR oversight body be consituted etc.

> *//*
>
>
> 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. /*
>

No, it is not only in these matters that you mention that your proposed 
system is flawed. It is undemocratic, subject to US policy and law 
making processes, in which I have less faith than you perhaps have in UN 
processes. Milton, I know you have a strong native political instinct 
and strong political views. Answer this honestly ' if you were not a US 
citizen, would you have accepted this arrangement'. I am sure you would 
not have. So, pl be rational here :).
>
> *//*
>
>
> 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./*
>

What policy/ legal basis is this redress based on. I remember a NCUC 
statement that ICANN should never take a political/ policy view of 
things, and limited by its mandate, only take technical/ financial view. 
Do I remember wrong. So, on what basis would the redress be provided if 
it involves a policy/ legal issue, even if FoE and anti-trust based.

> */ 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. /*
>

We keep coming back to the same point. US law is not acceptable. Milton, 
you reject UN systems because you suspect that a few authoritarian 
states will make the wrong kind of policies. You want us to remain 
assured that US gov will never make wrong kind of policies. Do you think 
this works for us, non US citizens. You seem to favour the US system 
because of your preference for long term stable policy/ legal systems. 
However, if we were to approach it rationally, I think the US policy/ 
law making system is much more volatile that UN based one. Dont you 
think so. With the kind of laws that we have seen recently passed in the 
US, or on being on the brink of being passed, do you think it gives the 
world confidence in the US policy/ legal system. On the other hand, so 
laborious and consensus oriented are UN processes, with US and its 
allies having such a position of enviable strength in them ( a fact we 
seem to very easily ignored) that nothing other than such policy 
positions that have long term relatively stable political consensus in 
modern, but evolving, political though and practice, can get past these 
processes.


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

No, it isnt. The international arbitration processes that are being 
insisted upon in FTAs provide an example of increasing use  of 
international redress mechanisms, an issue you again raised above. It is 
a different matter that I do not agree with the business-directed 
processes that actually get employed in case of FTAs. No reason however 
we cant have public interest oreinted interntional redress processes 
based on sound international law.

parminder

> *//*
>
> */ /*
>
> */Your turn./*
>



> *//*
>
>
>
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