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

[Mawaki Chango]

Two short remarks:

1. The cost/benefit (incentive/disincentive) analysis for a collective
governmental (or multilateral) agreement with ICANN has to be appreciated
both from ICANN and from government perspectives. And I admit, at this
point, I'm not pretty sure on which side the incentive scale will tip for
having either such collective framework or a collection of bilateral
agreements with ICANN. Adding to that, there might be a challenge in having
every country sign off on the same exact agreement (which they didn't
negotiated) with ICANN, but if that works then more power to ICANN.

2. Yes, I'm culprit for (implicitly) lumping the AoC and the notion of the
IANA Function... That is because I think it is also implicit in the
reasoning people make when they think of USG as holding a privileged or
exclusive position (above the "equal footing" level, so to speak) over
ICANN and anything it does for fulfilling its mission. I'm not sure if
opening up the mechanism of the AoC (which as you clearly show focuses
mainly on the oversight of the commitments therein) to multiple governments
without any subsequent and related amendment to the IANA relationship
between ICANN and USG will completely that concern to rest. But again, if
that works...

All that is open to discussion and I don't have any definite answer.

Mawaki


On Mon, Jun 3, 2013 at 12:03 PM, John Curran <jcurran at istaff.org> wrote:

> 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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