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

[John Curran]

On Jun 3, 2013, at 6:13 AM, Mawaki Chango <kichango at gmail.com> wrote:

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

Okay, some points to consider:

 - In my view, ICANN has enormous incentive to sign AoC's with any government 
   that wishes such, since it provides a straightforward well-defined relationship
   with governments which otherwise doesn't exist today

 - The effort involved in the reviews is quite large, interfacing with nearly every
   part of ICANN and also the various supporting organizations and constituencies.
   They are not "run by the US Congress"; you should refer to Avri's earlier note on
   the composition of the ATRT for additional details.  It takes enormous effort to
   hold true external reviews of conformance to the commitments, and there is no
   way that these could be done multiple times in each review period, i.e. the reviews
   have to be common to all organizations which sign an AoC.
  
> 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.) 

  While it is certainly possible to have common negotiation (and certainly having
  a single set of commitments makes good sense), I frankly do not see the benefit
  to ICANN of your proposed agreement structure, and if I were making the call, I 
  would enter into the same agreement text directly with each government.

> 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.

  You use the term "multistakeholder" agreement, and yet I am unsure if the role
  of AoC oversight counterparty is a role that's meaningful for any entity other than
  a government.

> 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.) 
 
 You seem to view the AoC relationship to ICANN as somehow related to the 
 USG/NTIA "IANA Function" contract, where is it a completed independent
 concept...  You can have 100 governments involved in performing oversight
 of ICANN, and that does not change USG having a contract with ICANN to 
 perform certain central registry functions.  If we had many such governments
 involved via AoC's, that would allow further consideration of how to evolve the 
 IANA function contract, but the resolution of that contract doesn't necessarily
 involve the AoC signatories...

FYI,
/John

Disclaimer:  My views alone.  Structure follows function (or at least should in
                  rational systems...)


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