[governance] "Oversight"

[William Drake]

H Parminder

Sorry to be slow to respond, swamped, forgot.

On Jun 11, 2012, at 9:30 AM, parminder wrote:

> Hi Bill
> 
> Thanks for the detailed and informative analysis. A few comments inline.
> 
> On Saturday 09 June 2012 02:38 PM, William Drake wrote:
>> 
>> Hi Parminder
>> 
>> On Jun 8, 2012, at 6:40 PM, parminder wrote:
>> 
>>> We should give a clear call for internationalising oversight of CIR management, whereby the oversight function is shifted from US gov to an international body constituted under an international treaty limited to addressing the question of CIR oversight.
>> 
>> I don't think it'd be possible to get consensus in the caucus on that, as evidenced by the fact that you've been saying this for years without getting a bite.  But that's not the end of the story.
> 
> What I was proposing now has two important new elements (1) oversight is treated in its narrow sense, and separated from from any framework that may seek to address larger global public policy issues (2) any treaty that establishes the internationalised status of ICANN at the same time recognises and formally legitimises the current ICANN/IETF/RIR model which thus blocks efforts at any significant encroachments on this model, something which we keep fearing, and quite justifiably so. 

Understood.  We disagree on a treaty being the only solution.
> 
>> 
>> To the best of my recollection, the caucus has on a number of occasions going back to WSIS called for internationalizing oversight, so that's nothing new.
> 
> Any operational model that got suggested? Other than goodwill declarations by the US, which are not enough. I read the model offered by Carlos Afonso and find it quite interesting and something that can be worked on.

I don't recall.  As I've noted before, all the early caucus statements seem to exist scattered around on people's computers.  I suppose if someone wanted to do a deep dive into the governance and plenary list archives attachments could be pulled together and added to the website, but who's going to spend the time…Adam had a site during WSIS that had some of them, not sure these made it on the new site.  
> 
>>  We also encouraged, in PrepCom 3 September 2005, the USG to make a unilateral declaration that it would not attempt to monkey with the root zone file, e.g. in cases where the US is in conflict with some country.
> 
> Useful but hardly enough. Other countries, and yes, it includes its people, want legal guarantees, not goodwill declarations.

Understand your view, but would caveat that it's actually unclear what the topography is, which 'countries' really want what.

> As you can see US with its insistence on kind of directly taking change of the security function around the root is increasing rather than decreasing its control. In the circumstances, it is rather hypocritical to expect other countries to reduce their corresponding concerns vis a vis the root. 

I'm not sure I read what's going on in exactly the way you do.  Either way, we should recognize these are dynamic not static relationships and that most of the evolution among governments takes place outside our view.
> 
>>  As you might imagine, that would have been a difficult stance for the representatives to run up the food chain in the Bush administration.  It would be interesting to explore whether such a declaration could be feasible if there's a second Obama administration, e.g. in the context of an expanded Affirmation of Commitments with buy in beyond the governments and other actors actively participating in ICANN.
> 
> As I said in an earlier email, I dont quite well 'understand'(not that I dont know of) Affirmation of Commitments. A genuine agreements should have reciprocal commitments and signature of all the involved parties. Unilateral commitments, and that is what the AoC model is, is not sufficient.

I think this is an unduly limiting reading of the AoC.  Yes the US still has a special role viz ICANN which I'd be happy to see evolve and eventually wither, but there is also accountability to/"oversight" by the broader community within ICANN.  To me the question is whether that can be strengthened and broadened further before/so that the US piece recedes.

> I find it as a kind of new term, and a new politico-legal fiction, that is based on recognising trusteeship by one or two parties for the rest of the world. I dont find such arrangements democratic, and also unacceptable on various other counts. BTW, when you mention 'buy-in' of other governments and other actors, what does such a 'buy in' mean? Just accepting and becoming a part of a carefully designed arrangement of, by and for the US?

Needn't be, they could participate fully in its expansion/evolution.
>> 
>> A problem arose back in WSIS as to the meaning of internationalization (or as many said, globalization, as the former can be read as between governments).  And it's still here today.  There's a chunk of the caucus that sees the preferred globalization as a truly independent ICANN, perhaps vested with IANA function,
> 
> By all evidence the US has been tightening rather than loosening its hold over the IANA function, and that you know is the real issue that bothers non US actors. 

Until there's somewhere better for it to go it's tight, but in the meanwhile in operational terms actually fairly light, as David has explained.
> 
>> perhaps with a host country agreement---if I'm not mistaken one ICANN strategy review on this highlighted Switzerland and Belgium as the most viable locations.  Personally, I think this would be politically easier to push through the rest if the atoms stayed in the US, but whatever.
>> 
>> I also think, as per points Milton and David have made, that any transition would have to evolutionary,
> 
> I see no real evolution towards internationalisation, but rather evidence of greater centralisation, on the crucial IANA function, and also with increased securitisation of the Internet. 

Securitization is rampant and highly distributed, and somewhat separable from IANA.
> 
>> with a campaign of effective persuasion yielding serious buy in from a US administration that'd have to be willing to go to the Congress and all the heavy duty government agencies, private sector groups, and noncommercial actors who'd be skittish about change and make the case for why this should be done.  It would be a battle, and political capital would have to be expended.  The administration would be vilified on the political right and have to tough it out.  And of course, if Obama loses, this becomes an even more distant possibility. 
> 
> This practical question of why a 'bad actor' would do what we want it to do is rather more general.... why would a china or russia change their international positions that serve the existing regimes, why would ITU not want more power.... Beyond a point this doesnt effect our, as in CS's, ethical positions, and the directions in which it seeks change. 

Not sure I'd conflate these
> 
>> 
>> The model you propose is obviously starkly different.  Rather than making ICANN fully independent and responsible to the global community through a revamped and expanded AoC, you want a UN negotiation that would yield an oversight treaty (among governments, presumably with full SG input but not equality) in which ICANN accountability would not be via an AoC but rather to some new body that in all likelihood would be populated by government reps not actively involved in ICANN affairs,
> 
> We can ensure that this is not so, in a manner perhaps similar to how global techical standards bodies dont get populated by gov reps, but by appropriately informed people..... and as i said, we can keep an appropriate model of national/ regional selections that does involve a larger local constituency then just an ad hoc gov appointment.... we can put general directions that i am sure most countries will largely observe. This does strain the westphalian model but that is the idea. 

I'm not sure how you'd ensure that governments send the right people with the right mandates.  Would you ban them from sending mission staff who are generalists, a la CSTD, and require only only home office experts who've formulated positions through truly democratic domestic procedures?
> 
>> and with SGs in some sort of undefined role (I remain unconvinced any treaty-based system is going to treat SGs as peers with equal input, which is problematic to many).
> 
> I am always happy to hear what kind of 'equal treatment' model do you really want. And what model of stakeholder rep selection, the two issues being related. (and whether such a model for just oversight function also extends to general Carlos suggested one for the international level, and also CGI.Br is a model to look at. So, do we have a model to propose. Lets not think of whether govs will agree or not. Lets place the model on the table and say this is what we are ready to go with. It is important to put forward the oversight model that is ethical and our best option to be relevant to the global discussions. Discussions and negotiations start from there. Not to do so is to legitimise the status quo. 

We just can't agree on equal treatment, since you don't think the private sector should be involved in setting the rules it lives by.  I'd like to think the ICANN model could be built upon by strengthening other parties and undertaking capture-reducing measures.  
> 
>>  And this implies not an evolutionary process where actors in the US come to a new understanding that the USG link can be severed without risking anything to security stability etc,
> 
> There is limit to which the international community can be asked to closely follow and cater to understanding and preference of various actors in the US. No, civil society needs to speak against such an arrangement. Lets have the guts to say that. I prefer to follow political systems that I have participation in. Will we offer a similar analysis of why things are as they are in China - after all there too there are a variety of interests, and also some very legitimate ones... and there too people speak of evolutionary changes..... do we have sympathy with such positions, or do we say, no, this is wrong and wont work, and we are against it. We need to speak up in the same manner about what is wrong with US's stance. 

I understand your frustration but think it's a reality to be dealt with.  The same would be true if oversight rested in another country that had massive institutional development and financial commitments built on the current system.
> 
>> but rather a sort of confrontational NEIO-style negotiation in which the international community rises up en masse and tells the US it must let go, now.
> 
> same analysis can be made about China's and Russia's international stances.. why dont we get more 'understanding'. Why dont we get a little less 'confrontational' about there stances, and well, also about ITU.... why such differential treatment.

Because their proposals are utterly appalling and light years worse for an open internet than anything even the most fervid corporate lobbyists in the US have ever proposed, at least to me.
> 
>> I don't see that working a) within the US, where everyone's back would get up a la WCIT, or b) in the international coalitions that would have to shape said treaty, because there's no evidence that the international community is en masse as unhappy as you are.  
> 
> Many many more are very unhappy then you seem to realise. Most of the global IG civil society space has been somewhat curiously constructed within structural forms and constraints that seem to blind it to this very wide spread unhappiness. 

Well, so here's an interesting point where I think you could really help out the discussion.  Your positions are generally predicated on the notion that there is this vast majority of countries/governments that are just seething with anger about US oversight of the root, IANA, ICANN.  I go to a lot of the same meetings as you (IGF, CSTD) and some you do not (ICANN) where there are also governments present.  And I have to admit, who is really seething and adamantly committed to a UN-based alternative is not always so clear.  Russia, China, South Africa, Iran, some of the CIS and Arab countries want intergovernmental control.  India and Brazil have their issues, but have more democratic and multistakeholder models in mind.  Who else?  Africa, Asia, and Latin America seem to offer a rather mixed bag of preferences and perspectives.

So: could you perhaps provide a topology of pissed-offness that we could discuss, in order to get a better handle on who wants what and hence how urgent we think this is?
> 
> (more comments below)
> 
>> David gave away the dirty little secret the other day,
>> snip
> 
>> I suspect many of us have had such conversations.  So I'm very hard pressed to see OECD governments backing such a move,
> 
> On the contrary, I think non US OECD governments will immediately agree to an international oversight board/ body, of course with all the due safeguards which I have been talking about. 

They've not said this publicly.  Which OECD countries do you think would prefer UN oversight of ICANN, IANA, the root?

> 
>> and the same may true for many developing and transitional countries who either are reasonably satisfied that stuff works,
> 
> No, none is satisfied.  Almost all countires given the option between the present system and an international oversight body, with due safeguards, will immediately go for the latter. I have not the slightest doubt about this.

None, full stop?  ALL developing and transitional countries—including all those involved regionally in their RIRs and participating in the GAC---agree with you?  I admire your lack of doubts, but on what empirically identifiable sources is it based?  Please be as specific as possible, as it seems really foundational to the discussion.  Citing G77 & China proclamations doesn't suffice, since as you know there are coalitional dynamics there that twist things.  I've had government reps tell me yes we are in G77 and didn't rock the boat on that statement but we don't really agree with it or intend to act on it...
> 
>> are tied into complex supportive relations with the US, or just don't care all the much either way, etc.  I just don't see the scenario in which you get a clear and remotely consensual mandate though a cosmic UN battle in which governments' preferences follow a highly variable geometry and most well organized SGs would be opposed.
> 
> If we look strictly and only at narrow oversight issue, agreement will be possible. That way no international agreement is easy. Do you think climate change negotiations are easy; but doesnt stop people to seek them, no. 

Sure people seek and attend them. Then they go home empty handed, and a few (Europe, a few US state & local governments, etc) try to do stuff.  Not a model I'd recommend for GIG.
>> 
>> But the two paths need not be mutually exclusive.  It's not inconceivable that over some years we move on the first approach and see if it works.  It it manifestly fails to meet global public interest criteria and satisfy enough governments and SGs, the question of establishing a separate UN thing to fix something that is indeed broken could then get a much more serious hearing.
> 
> Neither do I see any reform happening, nor is the present arrangement acceptable at the level of democratic principle (and that is not changing). For countries worried about security aspects (as US itself is) what is sought to be prepared for is the 'worst case scenario'. (as we all do for our security, we dont make arrangements for security of our house based just on the empirical premise that no one may have ever earlier burgled our house).
>> 
>> So my suggestion is to recognize that big changes in the architecture of global governance cannot be arrived at quickly and through confrontation, and that we should be in it for the long haul.
> 
> Even putting just and fair models on the table now is still a long haul struggle. Waiting may look like a stratus quoist position.

I'm for putting models on the table.  But still, any change that may eventually come will be evolutionary, and will require buy in at the domestic level in the countries where change would really bite.  That's natural. It'd be delusional to think there will be some big meta-negotiation in the UN that yields divided votes and strong disagreement and yet the US and others who don't agree will go home and tell everyone, well folks, we lost, now we have to change everything even if we don't want to in order to suite [your list of the deeply aggrieved].  
> 
>>  It's be a lot easier to push for revolution once reform has not worked, if indeed it does not.
>> 
>> And we should keep things in proportion and bear in mind that 99% of the actors relying on the Internet and caring how these things are done are probably unaware of the IGC.  Even if we could reach consensus on that there should be rapid movement toward a new grand design, the response elsewhere could be, "IGC who?"  I don't think we're in a position to unilaterally change the world along lines that lines that would be contentious, but we could weigh in and add weight to calls elsewhere to get started on a more evolutionary path.
> 
> Well, a civil society body's legitimacy and often even recognition comes with moral and political justification of its positions and its willingness and ability to work for it. This is a choice that IGC has to make. And if it does make the right choice, perhaps there will be less 'IGC who' questions. We are one of the premier civil society organisation must present the most moral and just models (this is done in other global gov spheres, it is only here that we have such an extra-ordinary comfort with the status quo), while also the relatively pragmatic immediate approaches towards it. That is our task, and if we are not doing that, we are not doing much of anything.. We are making ourselves even more irrelevant then we may at present be. 

Again, we can agree to disagree on what kinds of advocacy positions would give the caucus increased credibility and visibility.  

Best,

Bill
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