[governance] Does it matter which legal system ICANN operates under?

[Riaz K Tayob]

Thanks for this Keith. It is wonderful to have a reasoned discussion on 
this matter for a change.

As said previously, when critics wrongly accused some of us of wanting 
to break the internet, if there is a legitimate form of governance that 
reflects the international character of the internet then it should not 
be a problem at all with incremental or radical changes to governance of 
CIR. In that sense I am, as McT pointed out, a 'single rooter'. One 
should however expect the development of 'extreme' positions when 
democratic discussion is foreclosed. As you sow, so shall you reap. It 
is not nice being in a position to push the 'left' position because the 
centre is so far to the right... and it is not something I would like to 
do at all as it is just about desperately creating spaces instead of 
doing something useful, as many lurkers on this list could possibly attest.

Everyone is grateful for US technological investment and innovation, 
often paid for ordinary people in the US and serviced by USers and many 
many non-USers whom the technical community welcomes (one place in the 
world where 'fresh off the boat' is a good thing, although increasingly 
less so in places like Wisconsin). Reasonably fair (double standards 
rather than extreme double standards in other words) arrangements can go 
a long way to taking the sting out of dependency.

I do not take the simplistic notion of government bad. Here I take my US 
history from the early American Institutionalists, like Alexander 
Hamilton, Frederich List, Richard Ely, Daniel Raymon(?), who focussed on 
the important matter of the state and thecommonweal 
<http://www.othercanon.org/>. Of course one can understand the 
anti-government position in the US, but only to the extent that it is 
consistent, as taxes are high and regulations/regulators, many of which 
are pro-corporate rather than pro-people 
<http://www.ipsnews.net/2013/06/u-s-regulatory-system-stymied-by-special-interests/>, 
intrusive. From the outside, this is the cost of being the world's 
policeman (and for some the premier aggressor in the world). So 
government's role is crucial as it is a site of contestation for the 
national polity. As can be seen national US control despite its 
safeguards is insufficient after the NSA saga, and perhaps even 
Americans may benefit from some international oversight (but one cannot 
really do that with Bolton at the UN nor the new UN Amb who is Obama's 
amb. elect despite the practised dominance the US shows at almost all UN 
agencies... ).

The issue is that democratic discussion on this matter has been blocked 
in some obvious and devious means. This invites bad faith, whether 
others think this is justified or not. This is an impediment that I hope 
the likes of you and Curran, Perry, Roland, etc can accomodate instead 
of what we have had, and which I characterise as 'wild west cowboy' 
management of this issue.

The issue of multistakeholderism is also important. Combined with the 
active generation of 'bad faith' the bamboozling of those who ask for 
disciplines on the role of corporates in this process to secure the 
public interest is enlightening, and also does not behove us to many of 
its proponents - simply because of the 'fair and foul' treatment metered 
out on this list and in UN processes. Conflicts of interest are 
recognised as a problem elsewhere, especially in areas where technical 
people typically have these conflicts otherwise they would not have 
developed the skills. It can be managed, but not if it is a non-issue.

I am on the record that even ICANN in some instances was more 
progressive in incremental change than some of their 'usual' defenders 
in this space. Again, it breeds bad faith, especially since we know how 
powerful these civil society players are/can be and how powerfully they 
intimidate, seek to discredit and marginalise particularly certain Third 
World positions. It is the amount of venom that confirms for us the 
importance of this matter, as I am sure will become more and more 
evident as the NSA saga unfolds in all its unconstitutional glory. And I 
am personally certain that the CIR politics I have seen is about the 
intimate association between state and the private sector acting in 
concert (in all the Hannah Arendt banality of evil, simply to make a 
buck; or to retain US comparative advantage in this field, which is an 
acceptable national position, but is not global) while we cannot even 
get public interest issues as an agenda item without a public spat.

Personally with ICANN coming to Africa in July, I wait to see what will 
happen in terms of resource flows and capability transfers as Africans 
are at overall a much lower technical base (ecosystem wise, not 
necessarily individually). It may be something useful, where the hegemon 
actually shows noblesse oblige 
<http://en.wikipedia.org/wiki/Noblesse_oblige>, or it will be creating 
loyal vested interests to neutralise opposition while monopolising the 
local technical polity. Incremental change and noblesse oblige can go 
together, but this is a conservative position (i.e. privilege with duty) 
not a market based one (which is revolutionary cos the market can take 
you through a housing bubble all the way through to a bailout). 
Generally Africans typically get a bad deal not only because of internal 
conditions...

Contrary to what some may think, we know the score, recognise the 
powerful forces at work, but insist on believing in the reality of 
choice: even if we are mocked, scandalised and belittled as human 
beings. The current saga is showing how parochial the US type analysis 
is for dealing with these matters - shock at what is happening for some 
USers, while it is nothing new for many in the South (and in the North). 
Some perspectivism may not be remiss.

When the safety valve of dialogue is blocked in a non-binding forum like 
the IGF, I am sure you can understand how this will be offensive to a 
democratic minded sensibility. But glad to hear from you and to have 
this kind of discussion. I repeat the above so you can appreciate better 
why things are as they are, and hope, under Norbert's and Sala's able 
coordination, we can deal with this in a way that has at least some 
noblesse oblige rather than having us as supplicants on bended knees as 
others who block this issue typically prefer. We do recognise our 
subjection, but object to it being flaunted in our faces.

On 2013/06/14 11:11 AM, Keith Davidson wrote:
> On 14/06/2013 7:50 p.m., Riaz K Tayob wrote:
>> Techincally I have to defer.
>>
>> The problem of unimportance is belied by the variously vicious and
>> polite objections (I can provide details but it does not matter now)
>> from this list to WSIS and IGF where we have the proverbial 'dogs of
>> war' set upon us every time we raise this matter...?
>>
>> My view is that this is a political rather than technical matter...
>> swept under the carpet but getting sexy in this age of cummupence...
>
> The WSIS / ITU / UN / IGF solution to change the US Governments 
> unilateral control over the IANA database is to add more governments 
> through various suggested formulas to create a multilateral 
> controlling body. There are two aspects to this that cause me intense 
> discomfort.
>
> 1. If the idea of "1 Government = bad" is true, then the idea that 
> "more Governments = better" flies in the face of logic, and in fact if 
> 1 = bad then surely more = worse...
>
> 2. It is true that the US Government originally invested massively in 
> time and dollars in the development of the Internet - although not 
> deliberately, but through the military and academic communities, and 
> therefore is justified to take a patriarchal role in the management of 
> the Internet's unique identifiers. And generally the US Government has 
> acted fairly and appropriately, and is gradually enabling greater 
> autonomy to ICANN, as ICANN proves itself more capable of assuming 
> greater control.
>
> It is hard to find actual and significant examples where the US 
> Government has not acted in the best interests of the global internet 
> community, or acted purely from self interest.
>
> And it is getting easier to find examples of the US Government moving 
> towards enabling ICANN greater autonomy. For examples:
> - The change from Contract to Memorandum of Understanding to the 
> current "affirmation of commitments" as the agreement between the USG 
> and ICANN
> - The latest IANA contract negotiations went through two stages of 
> public consultation, and the final contract with ICANN for the IANA 
> function was much modified to take account of the input from the 
> global Internet community - particularly in terms of recognising 
> sovereign rights of nation states.
>
> And actually multistakeholder control is what we all eventually seek - 
> the Internet is much too important to be another plaything / political 
> football of governments - so it behoves us to ensure that 
> multistakeholderism, with business, government, civil society and the 
> technical and academic communities jointly and equally participating 
> is the appropriate future of "ruling the root".
>
> Cheers
>
> Keith
>

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