[governance] RE: FW: [liberationtech] Chinese preparing for a "Autonomous Internet" ?

Mon Jun 18 13:43:51 EDT 2012

Hi,

If I may offer to the discussion another bit of US administrative history trivia, which could buttress one's argument whether one believes the US has too much central control or whether one agrees that ICANN having to follow - some nation's domestic laws in various areas - is a good thing.

The US Administrative Procedures Act of -1946 - establishes a standard level of transparency for government and regulatory body actions.  "U.S. Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies" (according to Wikipedia) 

To clarify then from an APA view, the US DOC/NTIA role over the root zone changes is - not - to approve the changes; but rather to - confirm - (one could say approve the changes, after confirming) that ICANN aka IANA, and Verisign followed proper administrative procedures as set forth in the APA, in proposing and implementing technical changes to the Root Zone file. I am sure Parminder is delighted that a 'bill of rights' protecting individuals rights vis a vis possibly arbitrary action undergirds all changes in the root zone. If only there were principles as well. ; )  And which is not to say that under various worst case/doomsday scenarios the NTIA could - attempt - to do more. But I suspect it is held back by the NTIA's knowledge that knowledgeable insiders know that the emperor not only has no virtual clothes; or in political terms, enforcement mechanism. Which the NTIA's career bureaucrats likely need to explain to one generation after another of possibly overzealous political appointees. 

Nonetheless, I remain of the opinion that a host country agreement for ICANN is a good idea; but also agree with Alejandro that any proposed changes to core functions of the Internet must be approached with due caution, and with full understanding of how the current processes operate. And ideally, follow an open and transparent process of discussion and refinement.  Which is the kind of thing that the APA does reasonably well.  

So to be clear, in addition to some standards for competition policy, I am suggesting that given the resource allocation and quasi-regulatory functions of ICANN, and the high risk of regulatory capture from specific interests like, to pick random examples, the International Trademark Association, registries and registrars,  it is especially important that some form of good governance procedures - tether - remain attached to an autonomous ICANN.

Now to my second point. And I confess belatedly to not only playing a lawyer on the Internet, but to having spent time at the Max Planck Institut fuer Auslaendische und Internationale Privatrecht (Mac Planck Institute for Foreign and International Commercial Law) during my doctoral studies; and to having a concentration in international law in my master's studies at Johns Hopkins SAIS.   Meaning any real lawyers, or Internet lawyers, should feel free to correct me.

So:

International public law norms apply - universally. Yes a nation may not sign on to a particular norm, but that would not stop other nations or eg the International Criminal Court to bringing someone from a non-signatory nation to account.   Yeah, most clearly applies to war crimes, but similar sentiments drive other areas of international law.  International treaties generally are at this level, involving commitments of states to apply internationally agreed principles, also within their territories. Some require new domestically enacted legislation, others apply once the state signs on. 

There is international commercial law which applies to - transactions - and governs transactions among firms based within nations that are signatory to eg World Trade Organization agreements.  It explains partially why the US signed the 100 year-old Berne Convention for protecting intellectual property, 100 years late; since only with the growth of trade in services and the rise of the Internet did the US care to seek to strongly enforce its intellectual property claims abroad, with the cooperation of other nations and their courts.  That's WIPO territory at the international level.

And, there is comparative law, wherein transactions (and disputes) across borders are governed by one nation's domestic law, which the other party has acceded to at the time of the signing of a contract.  When disputes arise...well, in our Internet case, for certain instances, folks have agreed not to apply domestic or comparative law since it would be costly and complex, but to establish the UDRP for domain name dispute resolution.    

Meaning, we can point to the UDRP as a specific international improvization/adaptation of the global legal regime to accommodate the urgent fact that disputes were arising across borders around domain names.  

So, in principle, Parminder's argument that further -international/unievrsally-applicable legal innovation- is needed, cannot be rejected as unprecedented. 

Therefore:

Some aspects of Internet governance, touching on areas like free expression, and referencing the UN's Universal Declaration of Human Rights, fall in the first category.

Some aspects of ICANN's contract-driven regime relate to the second.

And, some aspects of what a future/evolved/more globalized ICANN does, may still best be tethered to either the host country, or another countries, domestic legal norms. For example, I have always been a big fan of the US Administrative Procedures Act, and have been advising ICANN to follow its norms and procedures as much as possible, for more than a decade.   On the other hand, I have been advising firms and governments to follow European Union Privacy Directives, also for more than a decade. Which is not to say that we could not cherry-pick various other nation's 'greatest hits' legal instruments, as needed, to apply to one or another aspect of the globalized ICANN. 

Absent that, then yes US domestic commercial law, and for incorporation and reporting to the state of California and to the Federal IRS for maintenance of its status as a non-profit organization, California non-profit law applies in the first instance to ICANN's actions and transactions. California non-profit law is as Milton has noted, actually considered by many (non-Californians) a reasonable basis for providing accounting of a non-profit organization's functioning.

Or, like with UDRP, certain admin procedure could be abstracted from various sources, and turned into new globally-applicable norms and procedures, for the Internet. We've been there, and done that. Doesn't mean we need to do it again, but does mean - it is possible, when coalitions of forces align/rough consensus on the need for change is reached.

In conclusion:

Asking - anyone - to develop a fully comprehensive model of the next stage of Internet Governance, presumes that person is as intimately familiar with the Internet's plumbing as David, John, McTim, Avri and Alejandro; but that they also have not one but three legal specializations/certificates as well.  Not to mention a fair appreciation of both public policy and contemporary business practice.  

Good luck to all of us globally crowd-sourcing the needed disciplines and knowledge together, and debating not one - but a whole pile of norms and procedures, and how they may - or may not - apply at multiple levels of analysis, to various aspects of Internet Governance.

All the while known and unknown game-playing agents seek to divert and distort the discussion for the usual reasons. But hey, at least, after a decade, we have begun to talk about what is really needed to globalize Internet governance.

Finally, tieing this back to the Chinese IETF submission for an 'Autonomous Internet.' Without going into specifics yay or nay on the submission, I observe that the Chinese submission to the IETF follows - proper administrative procedures in introducing a draft to the IETF, and not going rogue as a beloved US politician puts it...yeah I'm kidding at times, and other times not. Following diplomatic standards for discourse.

Lee 

PS: Slings, arrows, and lawsuits including for practicing law without a license may be filed to my email address above ; )

________________________________________
From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of Dr. Alejandro Pisanty Baruch [apisan at unam.mx]
Sent: Monday, June 18, 2012 11:00 AM
To: governance at lists.igcaucus.org; michael gurstein; 'Stephane Bortzmeyer'
Subject: RE: [governance] RE: FW: [liberationtech] Chinese preparing for a  "Autonomous Internet" ?

Mike,

I fear you have made an unwarranted assumption here - "technical people seem to assume that all issues concerning the Internet will be determined by technical people on technical grounds."

Speaking for myself alone: no, not at all; what many of us do believe is that:

1.  you won't be able to apply just any given social/political view model to the technology without considering the constraints that the technology carries with it (the "physics" of the Internet).

2. A lot of careful thought and decades of experience have gone into designing and implementing technology, so very often it has already been crafted in function of not purely technical concerns. The design for resilience of the root-zone server system is but one small example. People need to listen, study, and understand this well.

3. Many in the technical community were not only glad but actually proactive in seeking knowledge and understanding from such non-technical fields as economics, political science, and international relations. We have often been underwhelmed and disappointed.

Yours,

Alejandro Pisanty

! !! !!! !!!!
NEW PHONE NUMBER - NUEVO NÚMERO DE TELÉFONO

+52-1-5541444475 FROM ABROAD

+525541444475 DESDE MÉXICO

SMS +525541444475
     Dr. Alejandro Pisanty
UNAM, Av. Universidad 3000, 04510 Mexico DF Mexico

Blog: http://pisanty.blogspot.com
LinkedIn: http://www.linkedin.com/in/pisanty
Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614
Twitter: http://twitter.com/apisanty
---->> Unete a ISOC Mexico, http://www.isoc.org
.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

________________________________________
Desde: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] en nombre de michael gurstein [gurstein at gmail.com]
Enviado el: lunes, 18 de junio de 2012 09:45
Hasta: 'Stephane Bortzmeyer'; governance at lists.igcaucus.org
Asunto: [governance] RE: FW: [liberationtech] Chinese preparing for a  "Autonomous Internet" ?

One thing I've noticed in the course of these IG discussions is that while
technical people seem to assume that all issues concerning the Internet will
be determined by technical people on technical grounds, non-technical people
assume that non-technical issues (at least) will be determined by
non-technical (policy) people for whom the perception of the issue (and its
broader context) is very much more important than the reality or not of the
technical circumstances.

As per the below--identifying a particular argument/person/position as
"ignorant" may for technical people be understood as the end of the
argument--for non-technical people such an observation is rather the
beginning since it means that the other party, needs to be
informed/educated/persuaded/understood before one can move on.

To ignore or dismiss someone's position because they are "ignorant" (or
whatever) in non-technical areas (at least) is extremely dangerous since
without some intervention it is quite likely that they will act on the basis
of that "ignorance" with quite unpredictable and potentially extremely
damaging consequences.

M

-----Original Message-----
From: Stephane Bortzmeyer [mailto:bortzmeyer at internatif.org]
Sent: Monday, June 18, 2012 3:54 AM
To: governance at lists.igcaucus.org; michael gurstein
Cc: lists at infosecurity.ch
Subject: Re: FW: [liberationtech] Chinese preparing for a "Autonomous
Internet" ?

> Even if we know that "root servers" are very well distributed across
> the world / countries trough a collaborative system, chinese see this
> as a "central control".

I'm always amazed by the amount of ignorance in some people in governance
discussions. Google's servers are "well distributed across the world", even
more than the DNS root name servers. Does it mean they are not centrally
controlled by Google?

The root zone can be modified (even for small technical changes) only when
there is an express approval by the US governement. Isn't it "central
control"? Pretending that the physical location of root name servers
diminishes this control is quite ridiculous.

-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.igcaucus.org
To be removed from the list, visit:
     http://www.igcaucus.org/unsubscribing

For all other list information and functions, see:
     http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
     http://www.igcaucus.org/

Translate this email: http://translate.google.com/translate_t