[governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

[riaz.tayob at gmail.com]

Thanks for this effort.

Perhaps to add to the synopsis and opinions expressed, there is one implicit angle that is not included would be. That the positions taken by par minder and other transformers is that they have already included accommodation to these concerns.

Where issues of substance cannot be adressed process solutions may be competent. Here we could consider hosting discussions (as shaped by these interactions) that are chaired sensibly so that these matters can get a hearing. That I think is challenge enough, and I hope we can make this modest advance that in light of past experience would be monumental. And here this is one of the bones of contention with reformers... Because they suffer from either or both 1 unwilling to entertain this difference, 2 do not see this even capable of discussion in these fora. 

With these modest aims, given there has Been some discussion, the terrain is largely mapped...

Let's see what can happen, even if substance wise it is distant to a common position...
...,...

On 12 Sep 2012, at 12:33 AM, Lee W McKnight <lmcknigh at syr.edu> wrote:

> Hi again,
> 
> I will try one last time to assist moving the dialog along.
> 
> A) By now it should be clear that when we talk about matters of non-profit law, it is a state-level matter in the US although it also ties into federal law for an organization wishing to avoid national income taxes.  As Milton and I have pointed out, we can all complain about things Californian including their rather dysfunctional state government; but California non-profit law is pretty benign and compares reasonably well with most others.  
> 2 Conclusions: 1) We can reincorporate ICANN somewhere else but to get away from California state law for non-profits is not a great reason for what would be a big effort. 2) Some may prefer Indian or European or Brazilian or whomever's law for non-profits but this is really not going to work as a rallying cry for a dramatic change in ICANN. 3) As Sala and otehrs have pointed out, getting away from the extraterritorial arm of the US, or Indian, or EU, governments - ain't happening.  (Unless there is consensus we should grant immunity to ICANN from national laws. All in favor of strengthening the IPR lobby in ICANN? : ( Or, all in favor of calling for a convention to explore what a future international oversight framework would look like? Some of us suggested that many years back, and got nowhere.
> 
> B) When we get into CIR issues like the mechanics/administrative procedures for overseeing changes to the root-zone file, as I have pointed out right now US federal government/DOC/NTIA tries to do - nothing - other than make sure others follow fair administrative procedures.  However, and there is a super-legit however here, in a world where approximately 80% or is it 90% of Internet users are outside the US, any tie back to just one government does not pass the smell test.   I think we IGCers are unanimous on that.
> 
> 2 possible conclusions:
> 
> 1) Free ICANN from hypothetical future USDOC/NTIA interference as Ian Peter suggested. Which would also free ICANN from any other government mucking around at that level, in a hypothetical future. Fine by me. Though I worry ever so slightly that the latest example of ICANN's immaturity (oh yeah we forgot to put in place a conflict of interest policy for folks about to launch a new ICANN-created market)  is not the last example of ICANN proving in practice to be not really as grown up as ICANN, like most 14 year olds, claims it is.  Still, the proud parent USG will be more inclined to want to let the organization grow up and graduate from needing a babysitter, than accept other's suggestions that they would be better parents. Still we can imagine...
> 
> 2) Developing some form of international oversight as Parminder suggests.  Which, sorry to say, I have yet to hear a clear credible plan for anything workable that would not lead the volunteers of the net to wander off the job and recreate something else that looks just like the Internet but is not the Internet. Which would keep the government's of the world away from running the engine rooms of that not-Internet. As -not- documented, root zone operators and mirror server operators are all autonomous free agents and are not - save for certain exceptions like specific root zone operators that are part of the USG - beholden to the USG or any other government.  So yes doing anything here, we could indeed imagine it getting done by governments of the world agreeing, in principle. But it is not so easy to imagine what changes might obtain the consent of the net.  
> 
> C) With regard to an OECD ICCP-like meeting forum for the whole world, rather than just the 15%? - of world government's that are full participants in OECD, that is an idea I am quite sympathetic too.  Imho, just as G20 has become the main gathering of the mighty, and G7 mainly a few day photo op, it would be up to the BRICs + South Africa, Nigeria, and some Middle Eastern states to determine that they need something like the ICCP badly enough - to pay for it.  
> 
> Meaning, in the first instance this requires some number of the - excluded from OECD - government's to feel there is enough benefit to them of something like that getting going in the UN system, to promise to put up the $$ to fund it. Absent that, the government's already paying the costs of OECD's Parisian HQ are not likely to feel they can explain to their own citizens why something similar in the UN is also needed.
> 
> Conclusions: 1) while us academics love the OECD's data collection and experts, industry elite + government leading policy edge schmooze-a-thons (I confess), and would love the UN to create another analagous thing, I suspect it will be - very - difficult to get that instituted in the UN system.  UNDESA will claim they already do it; as will ITU; as will WIPO and UNCTAD.  On finance and tax policy issues which OECD also deals with, WTO and IMF will say they got that covered.  Therefore 2) This looks to be a heavy slog, even if it is one I agree is needed/helpful in principle and which the example of the ICCP can illustrate the benefits of.  However, 3) ICCP at best pays its excellent staffers to write - policy background docs which encourages nations to harmonize policies and do things like - ensure information privacy and security standards are followed by public sector agencies. OECD is the penultimate talk shop with no formal power to do anything, including offer - oversight - of anything. Unless explicitly invited to comment and offer feedback by member governments.  So...the ICCP2 could offer ongoing, periodic oversight of ICANN, and IGF, RIRs, W3C, etc - if invited. I can imagine those organizations welcoming a structured way to put themselves up occasionally for voluntary self-assessmemts and critiques by governments, aided and abetted by a new crack squad of (global IG savvy) ICCP2 staffers, with industry whispering more or less loudly but politely in the government's ear just as they do at ICCP meetings. 
> 
> Or, cough, governments and business could get out of the way and let the IGF belatedly begin to grow up and do more or less the same thing.
> However, ongoing oversight of one specific agency or function or non-profit is not an OECD strength and certainly not an ICCP capability. Periodic monitoring and feedback, however, that can be imagined. 
> 
> Meaning again, cough, oversight of those pesky CIRs is really beyond OECD in any kind of operationally meaningful way. And it would be difficult to imagine a UN-centered ICCP2 analogue that could obtain that authority and expertise.
> 
> Which takes us back to 4) ICANN's GAC as the only government-inclusive game in town, with enough knowledge and expertise of what is going on in (most) of the various Internet engine rooms we care about. That then leaves the world's government's also without formal authority to dictate anything to ICANN, which Parminder you seem to be claiming is required for global legitimacy.
> 
> Others may find - the consent of the net - and the open participatory processes of ICANN which would suck up every spare minute of every volunteer, worldwide, which it can persuade to help, as preferrable to a more traditional state-centric approach. Most any company, worldwide, and most civil society folks may consider it to be just fine that national governments do not enjoy their usual - hegemony - over the net. Since GAC is merely advisory, it is indeed frustrating for national governments to be in the position of - humbly offering ICANN's board advice it may or may not take.  Of course various punitive actions can be taken and/or threatened, and carried out in one or another national jurisdiction. But not readily at global level.
> 
> So in sum, I still see us as stuck in the muddy waters of an imperfect system which is however the only one around. And we have no clear path to go from a situation in which one nation's laws, at both state and federal level, provide the framework for ICANN to operate. But as many others have noted, what happens for real in ICANN day to day has very little direct connection to either the federal IRS tax code or California non-profit law.  Saying but hey the US is the hegemon, and look how crazy the US Congress is; so therefore the USG should agree to let another state or group of states take over oversight...does not sound like a logical conclusion or high likelihood outcome either does it.  
> 
> Finally, aA WGIG2-like gathering of experts as Wolfgang has suggested, and/or Norbert's more open bottom-up Enhanced Cooperation Task Force - possibly - could move us ahead here. But I'm not holding my breath for either since critical mass of opinion in favor of any particular method for finding a way forward is not apparent. 
> 
> Now, like Milton, I am done with this dialog. At least until I hear from someone, anyone, with a way out of the fog.
> 
> best,
> 
> Lee 
> 
> 
> 
> 
> 
> 
> 
> 
> 
>   
> 
> 
> From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of Salanieta T. Tamanikaiwaimaro [salanieta.tamanikaiwaimaro at gmail.com]
> Sent: Tuesday, September 11, 2012 3:37 PM
> To: governance at lists.igcaucus.org; Riaz K Tayob
> Cc: parminder
> Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs
> 
> 
> 
> On Tue, Sep 11, 2012 at 10:24 PM, Riaz K Tayob <riaz.tayob at gmail.com> wrote:
> Parminder
> 
> One can put is also differently... if it is just US law then it does have de facto global application... now if these proposals were to be take seriously... then how would ICANN deal with the issues at the edges... porn in Saudi, religious and political symbols in France, sacred issues in India, etc... most international regimes are adept (if oft inept)  at dealing with diversity... do you even see a trace of this in ICANN (although it is improving) or in the discourse... 
> 
> In relation to the issues you raise, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) already raises the three exceptions, national security, public morality and if provided for by law. I think there is some confusion with governance. ICANN is kind of like a phone book. Countries are sovereign and free to have a McDonalds in their country and if it is their preference not to create "beef-based" products in India or "pork based products in other countries just means that countries choose what they want in their own countries. Even with the case of Vinay Rai, the Editor of an Indian newspaper who went to the New Delhi courts to take Facebook and Google to take down certain sites which he demanded were in violation of India's national laws. 
> 
>  
> If difference cannot be dealt with operationally in a sound way (i.e. deal with national sentiments, cultures, approaches, alternative conceptions of the good life, etc) then it remains an American imposition at least at the edges.
> 
> Having participated in policy processes and commenting on them, I can say that they welcome input and diversity. How can one complain unless one participates? 
>  
> (where it does tend to count more than other issues).... And it is not just national or individualistic diversity one is talking about... it is also policy diversity...
> 
> Participate in the Policy discussions and you will see the Policy diversity. I mean look at the IDNs and the policies being developed, is that not diversity enough?
> 
> I
> 
> riaz
> 
> 
> 
> On 2012/09/11 12:49 PM, parminder wrote:
>> 
>> 
>> Hi Lee, 
>> 
>> We live in a world that is made of territorially defined and bound jurisdictions. Plus, there is some international law/ jurisdiction, albeit rather weak. There are no doubts exceptions, whereby territorial jurisdictions are able to, in some way or the other, reach out to other parts of the world. (This mostly happens  on the 'powerful gets his way' principle, which is not to be recommended.) Admittedly, there are more such instances in a more connected world today then ever before, but they still are 'exceptions'.  The problem is that Milton and you are trying to propose a governance system out of these exceptions. No, it doesn't work that way. We cant work with exceptions, we have to work with the main system. And the main system is broken, for which please see below...
>> 
>> 
>> On Monday 10 September 2012 02:11 AM, Lee W McKnight wrote:
>>> Hey Parminder,
>>> 
>>> If Milton's signing off, I'll sign on for one more attempt.
>>> 
>>> My aim is not to encourage lawsuits against the hegemon's proxy ICANN - but I feel them coming on anyway, with the .xxx one just the tip of the hegemon's melting iceberg.  (I'm enjoying this 70s flashback, don't get to use the word hegemon twice in one sentence often these days : )
>> 
>> You do agree that there are many lawsuits coming ICANN's way. Are we prepared for the outcomes of these lawsuits, which are as inevitable. How long will the US executive be able to put persuasive pressure on the US judiciary to not do anything that may rock the boat. I dont think the US judiciary is that subservient, and, sooner or later, it will decisively apply the law. In an email on 27th Aug, responding to my specific poser, David Conrad developed the scenario that may follow an adverse decision in the .xxx case. It culminated in the 'possibility' of .xxx having to be removed from the root. Are we

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