[governance] Potential IGC letter to US gov (was Re: NET NEUTRALITY AND MORE)

[Mawaki Chango]

Just to address what seems to me a bit of a misunderstanding...


On Mon, Jun 3, 2013 at 6:13 AM, John Curran <jcurran at istaff.org> wrote:

> On Jun 1, 2013, at 12:42 PM, Mawaki Chango <kichango at gmail.com> wrote:
>
> > Hi Bill,
> >
> > My question, and tentative answer, was predicated on the notion that
> there is no issue with the role of the other stakeholders within ICANN (see
> constituency structures), but only with governments. But maybe you're right
> suggesting that the whole framework be redefined for all stakeholders at
> once. In which case, this will have to be a more complex exercise which
> will require that the whole thorn that is "respective roles and
> responsibilities" be removed or all aspects resolved once for all.
>
> Something to consider is whether there is a one to one relationship
> between organizations and their roles, or whether an organization
> may have multiple "respective roles"...  I explore this question with
> respect the "role of government" below.
>
> >  The solution you're proposing suggests to me two opposing lines of
> argument:
> >
> > 1. Governments have no particular role to play: the authoritative body
> to which ICANN will commit to in an AoC type agreement will be a
> multistakeholder one where all stakeholders are represented on equal
> footing, government being just one of the stakeholders. (This seems more
> like what is implied in that proposed solution.) In the best of worlds, I
> can go with this assuming that sound mechanisms are found to fairly
> distribute representation across stakeholder groups and regions.
>
> Wow... lots of assumptions embedded in the above solution.  In the
> Affirmation
> of Commitments (at least as I understand it), ICANN is committing to a
> particular
> government (USG) to uphold certain important principles and organize
> periodic
> reviews of its commitments.  Governments seeking similar commitments from
> ICANN could probably get a similar Affirmation of Commitment and
> participate in
> those periodically reviews (I presume - I am neither a government nor have
> I asked
> ICANN to enter into such an AoC... ;-)
>
> I note that you use the phrase "the authoritative body"; this implies a
> central body
> as opposed to ICANN making these commitments to directly to all governments
> that require such and wish to participate in the reviews via entry into an
> AoC
> agreement.  If ICANN is willing to commit to these principles, and be held
> by
> governments accountable to them, I'm having trouble understanding why there
> is some additional "body" involved in your solution.
>

I do not see ICANN signing, say, 120 AoCs with a series of 120 governments
just because each one decides for itself that ICANN needs to sign such
document with them (a scenario that derives from what you're saying above,
for nothing guarantees that all AoCs will be a cut-and-paste of
the existing one and I don't see all the other governments flying to D.C.
to join the Congress when it holds those AoC-enabled hearings.) So on the
multiple AoCs scenario, I don't think ICANN has much incentive to do that
and accept the burden to manage that many separate sets of commitments of
possible legal consequences, just because any country wants to have that
imposed onto it (keeping in mind that governments already have the recourse
afforded to them by the bylaws article you quote below in case there was an
issue of illegality in their country with any ICANN policy.)

Instead, and with a view to transitioning from the USG current role (or
position) to one similar or other roles (to be defined through the
negotiations that will then take place), I can see a collection of willing
governments collectively negotiating and signing one single document with
ICANN. This is not a treaty process. The opportunity will be well
publicized to governments but their membership (or manifestation of
interest to join) will be voluntary, a la GAC. Once they join, a
negotiating group comprised of government and ICANN delegates will be
formed to hammer out the draft of the agreement to be signed between them
and ICANN. The global internet community will be invited to comment and
give inputs, etc. Once there is a consensus on a text, a structure or an
individual delegated by that whole collection of governments will sign on
their behalf one Agreement with ICANN (instead of having an agreement with
each government separately.)

Please note:
i) This is a brushing in broad strokes of the scenario that stems from the
options I presented earlier, as a response to your reading (I didn't have
to spend a lot of time thinking about all the details, so please bear with
me, nothing is set in stone.) But this scenario corresponds to option 2,
rather than option 1 above which instead focuses on a multistakeholder
AoC-type agreement with ICANN, not just a government-ICANN agreement.

ii) I use the term "authoritative body" first because I consider the
current USG position as an authoritative one: they have delegated that
function to ICANN which has to account back to them, not to mention they
are in position to sanction ICANN policies one way or the other, and my
understanding is that it is that role that we are seeking to evolve, so in
that context I don't think the terminology is misplaced or misused; second,
it is true that I am assuming some kind of structure will have to be
organized with the authority to act on behalf of all governments who join
that process. My take is that this is not particularly centralized beyond
what will be required to have one Agreement with a collection of actors, as
opposed to having as many agreements as there are counterparts (minus 1).
Most importantly, that body is not meant to replace anybody (as you seem to
interpret above) but could be used by the collection of willing governments
to do one ore more of these three things: negotiate the agreement, sign it,
or carried out the government functions on a continuous basis (i.e. outside
"statutory" sessions), all on behalf of the collection of individual
governments. Now I agree you may also have all those things done by all the
concerned governments individually, a bit like they do with treaties (up to
each one to form or join alliances in the process.)


>
> The oversight role for governments via the AoC is only one role available;
> it does
> not address the role of governments in the policy development process.  It
> is quite
> possible that participating in policy development is a different role, but
> still one
> available to governments that wish more than just participating via the
> oversight
> role provided in the Affirmation of Commitments.  For example, with
> respect to number
> resource policy under ICANN, governments are free to propose policy and
> comment
> on policy proposals underway in the Regional Internet Registry (RIR)
> development
> processes just as any other participant.   The "policy development" role
> is available
> to all, and some governments do also participate at this level of the
> policy formation
> process.
>
> It is also possible that government participation through the GAC is yet a
> third role,
> since it is not provided for the normal course of policy development, but
> (per the ICANN
> Bylaws) to "consider and provide advice on the activities of ICANN as they
> relate to
> concerns of governments, particularly matters where there may be an
> interaction
> between ICANN's policies and various laws and international agreements or
> where
> they may affect public policy issues."    This appears to be a liaison
> role, whereby
> governments have an opportunity to apprise ICANN of how its activities and
> policies
> may intersect laws and agreements.  Telling ICANN that a policy has an
> interaction
> with a given law or agreement is important, but is not the same as actual
> participation
> during the course of policy development and should not be lightly
> co-mingled.
>
> In truth, the question may not be "what is the role of government," but
> more likely
> "what are the available _roles_ for government" to play with respect to
> coordination
> of critical Internet resources.
>

I agree with you on all that. The comparison with the AoC by the phrase
"AoC-type agreement" was not meant to say the current AoC content will be
retained. The content of the new framework will be negotiated anew, with
the definition of all types of role, relationships as well as all roles and
functions (for governments or for all stakeholders in this particular
document, depending on the type of framework eventually chosen for it),
safe unnecessary levels of detail.

Thanks,

Mawaki


>
> FYI,
> /John
>
> Disclaimers:  My views alone.  Not being a government, I do not intend to
> enter into
>                     an AoC agreement with ICANN, but as a citizen of the
> Internet I still
>                     intend to hold them accountable to the principles
> therein (at least via
>                     the court of public opinion...  ;-)
>
>
>
>
>
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