[governance] "technical community fails at multistakeholderism". really?

[John Curran]

On Oct 9, 2013, at 12:00 AM, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>
 wrote:

John,

Your principal issue with the Oversight Board we proposed is that - it seeks to ensure that ICANN works as per international law and legally developed policies, rather than, as you say is the present oversight function, merely ensure that ICANN fulfils its mandate properly. My response is as follows.

One, the new IANA contract seeks a public interest justification for any root modification, and that directly puts IANA authourity holder - the US government - in a position of making judgements over what constitutes public interest, which is a much more unclear term, and open to subjective interpretations, than seeking adherence to international law and legally developed and communicated international policies etc. So, if your bottom line is  - dont go beyond the current US oversight function, I am fine with it. But in our proposal, we are being clearer (and milder) than the current US oversight function is.

It is not apparent that the theoretical approval of root changes ever actually resulted
in USG "judgement" being given in any case, and that is a not a model that you want
to emulate.

Second, I understand it is already ICANN's self-defined mandate to work as per international law. Isnt it. We are just reinforcing it. I mean, it should be something higher than the ICANN's own authority to change this particualr mandate. They cant simply mandate themselves one day not to have to work as per international law.

That should be resolved through the globalization and internationalization of ICANN's
charter, and can be done in a manner that is durable and beyond revisiting.

However, I am happy to change the language and role of the mandate of the proposed oversight board to keep it as close to the current oversight role as played by the US governemnt at present. we can put in an agreed text , at a general principle level say, that the role of the proposed global oversight board will be exactly as played by the US governemnt at present in its oversight authority. That that work for you.

That's certainly a lot closer to my desire, in that it keeps the role clear and focused.

Lastly, you have a objection to the secondary advisory role given to the same body (the proposed global oversight board) with regard to IETF and other technical standards bodies. We, the group that proposed this statement, strongly feel that the time has come that IETF kind of so called open processes have some kind of an institutional international advisory board that can regularly bring in public policy perspectives to such bodies. We are very clear that this role is indeed strictly advisory. This will also benefit the technical standards bodies a lot, and so forth.

Advising the IETF, ICANN, RIRs, etc. on proper public policy mandates and norms
is very important and I support such.  However, that's not an "oversight" role, and
doesn't have to be conflated with the same body.

But for the present purpose, to get a consensus, we can entirely remove the advisory role for such a proposed body from the mandate. And just have a global oversight board with exactly the same mandate, role and authourity as is exercised by the UG government with regard to ICANN/ IANA function. We can just agree to this particular language.

Why can't the Oversight Board have 24, 40 or 90 organizations participating, if indeed
its mission to be provide oversight?  Wouldn't we want nearly any government, civil
 society, or technical organization interested to be able to participate in reviewing
ICANN's compliance to its mandate?

Meanwhile however I do remember that you have regularly mentioned - and it appears in ARIN's response to WGEC as well - that technical community will want clearly laid out international law and public polices, at a relatively higher/ general level, and would welcome any effort in this direction.

Absolutely.

A global oversight board, constituted properly, and relatively insulated from political subversion, will be able to do precisely that.
Otherwise the canvass of international law and pulbic policies can be too spread out and diffuse to make propoer sense to those invovled with day to day technical operations pertaining to the Internet.

Oh really?  If that's the case, then the canvass of international law and public
policies needs to get its collective act together if we're expecting the Internet
to recognize and conform to such...

Note that the Internet is unlikely to function in the face of multiple overlapping
and differing public policy mandates, and hence it is incumbent to have such
public policy directives be as global (or close to global) as possible. The hard
work of getting governments together to accomplish such is quite independent
than the relatively easy goal of getting acceptance of the outcomes of such
processes.

In any case, a group that wishes to keep ICANN apprised of such does not need
to be an oversight body to accomplish that goal, and it creates significant confusion
in combining roles.

A properly constituted and mandated oversight board would in fact do what you, and evidently, AIRN has been asking for - clear policy frameworks, but any policy body staying at more than an arms length from day to day operations. Such a pulbic policy interface is much better than say the ad hoc interventions like those done by GAC at present, completely dependent on the political muscle of the invovled country(ies) but with no clear documented legal/ policy basis.

Agreed again, but the random thoughts of an appointed board on what they feel may
or may not be applicable is not what is needed; what is need is governments start
collectively making high-level and clear public policy mandates in this area, and noting
the existence of such when apprised of policy development going on a specific area,
so that it can be brought into the policy development process as a key input.  This is
really what should be happening with the GAC (receiving a report of new policy efforts
in ICANN, and looking for any applicable mandate in their owns) but instead we've got
the GAC->ICANN input having its own path into the policy development process.

So that this proposed global oversight board does not abuse its authority, and works within its narrowly circumscribed role, its decisions should be subject to be appealed to with the Intenrational Court of Justice, which should set up a special bench for Internet issues of this kind. All this is easily plausible, given just a little political will.

I'd like the only decisions out an oversight body to be one of two things: 1) ICANN
is deficient in its mandate for a given registry (e.g. dns root) in the following
manner ______ and need to comply within nn months, or 2) the oversight body has
determined that specific registry should be delegated to a successor, once one is
found and transition arrangements have been made.

Perhaps it would be good to specify some "use cases" for your Oversight Board in
a  separate document?  I suspect you have many more such cases for your form
of Oversight Board than I...

/John

Disclaimers:  My views alone.  I hold myself forth as highly caffeinated Internet
                   workaholic, and am willing to be audited and reviewed as such...

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