Oversight role (was Re: [governance] "technical community fails at multistakeholderism". really?)

Wed Oct 9 12:05:01 EDT 2013

On Oct 9, 2013, at 1:48 AM, parminder <parminder at itforchange.net> wrote:

> John
> 
> This is a very useful conversation and I'd like to continue - which I will do, on the side. Meanwhile, I am also looking at points that perhaps can fit a possible mutually agreed text that civil society can then propose to the technical community as a response to the Montevideo statement. 
> 
> In this regard:
> 
> (1) Either you do not want an Oversight Body, whereby, as ICANN is rid of US' oversight, existing so called community oversight over ICANN is enough, . Is it so? In that case, the question is - what if the ICANN Board does something completely absurd and beyond its authority/ role? Today, the situation is that they will receive a 'nice' letter from NTIA - they know they will receive one, and therefore they tread carefully, which is the functioning oversight system at present. Take away the US oversight (as we agree we should do) and this system disappears. Are you ready to simply have no specific enforceable oversight at all over ICANN board after it severs its oversight relationship with the US gov (on which we have agreed)? 
> 

> (2) Or you are ready for an Oversight Body with a  minimum role, which, as we seem to agree below, at this stage is to be stated in general terms to be exactly as that of the US government at present. In that case, we need to agree on some possible way to constitute this Oversight Body, by whatever name. I proposed a series of options that keeps it relatively free from political subversion but still effective enough to be able to carry out the functions it needs to carry out. You suggest below that it should be an open body that anyone can join in. Are you seriously suggesting that the oversight role should be done say through open elists, or whatever way everyone can join a body at will. Can you be clearer about what kind of a body are you proposing here? How does it function, decide things, communicate its decisions to ICANN, enforces them, and so on? And how is this kind of oversight different from what ICANN claims is already a set of community accountability processes that it has at present. Are you proposing a new set/ process/ body, or referring to the processes that already exists?

Parminder -

I can weigh in on this, but first must make clear that the views I express are very much
my own personal views (i.e. the ARIN Board/membership has not discussed, so ARIN 
has no position at all.)

I believe that the global community needs to be able to frankly discuss performance 
(and any failed expectations) of any organization which coordinates key components 
of the Internet infrastructure, and to do so in a very open, very brightly lit public forum.
These organizations perform a crucial role in success of the Internet, and assert to 
meet virtuous principles such openness, transparency, inclusiveness, balanced/equal 
participation, broad consensus, etc.  

The role of an Oversight Body, in my personal opinion, should be to allow everyone 
to participate in discussion of these key organizations performance these values in 
a maximally transparent forum which utilizes online mechanisms (e.g. mailing lists,
wikis, video/teleconferences) along with periodic in-person meetings.  I further believe
that such a forum should operate under maximal openness and transparency itself
(quite important given its role) and therefore it simply cannot exclude participants.
I actually see this as a very important protection, one necessary so that all parties 
(particularly civil society) know that organizations critical to the Internet effectively
report to the entire Internet...

I believe that an extremely well-defined role needs to be defined for such an Oversight
Body, and it should be chartered to review audit reports from the key Internet policy 
and standards organizations regarding their performance against their open/transparent
asserted principles, to commission independent reviews of the same, to frankly discuss 
the results of such audits and reports publicly with the organizations under review.  
I believe that the Oversight Body must be able to recommend changes to practices, 
and require participating organizations to response publicly and in writing to such 
requests and any related followup.  Finally, I believe such an Oversight Body must, 
as a measure of last resort, be able to recommend that an organization asserting to 
be administrating critical Internet resources via the multistakeholder principles but
found chronically negligent (and without credible plan for resolution) should no longer
administer such resources; such a recommendation is to be considered by relevant 
authorities so that plans for redelegation can be arranged.  

> (3) You seem to suggest below that IANA function/ authority of actual root changes could be done by ICANN directly rather than by a body that has oversight over it - which currently is the US gov. Well, we can agree to that. What this means is that unlike the pre facto oversight/ authority over root changes that US gov has at present, in the new oversight system is will only be post facto, if a clear violation of ICANN's declared processes / mandate can be shown to have happened in the process. I can agree to it. (Although as above I still need to understand what kind of body can actually carry out such post-facto role, and in which manner.)

I hope I have outlined my views regarding an Oversight Body.  It does not reverse or
alter any policy development or implementation decisions, but chronic failures in proper 
performance instead lead to a recommendation of loss of the role of administering critical 
Internet resources (a very significant consequence)

You'll note that this same Oversight Body could apply to entities further down the chain 
than just IANA, e.g.  ARIN, a delegated competitive or cooperative TLD, etc.  That was 
quite intentional, I believe that the task of making sure that organizations (who are 
administrating critical Internet resources) are actually upholding their claims of openness 
applies at many layers of the model (but obviously lies beyond the scope of a discussion
purely about transitioning IANA function oversight...)

> (4) Whether we agree on some body doing a narrow oversight over ICANN as ICANN gets truly globalised, or we just agree to a free-float ICANN with no oversight at all, but as an international body, we still need to agree on a few things (which I think are rather easier). These are - (a) ICANN gets incorporated under international  law (How the statement of such law is reached, and under what protocols does then ICANN's incorporation proceed will need to be worked, and there are some international precedents. However, at present we can agree to the principle involved.) (b) ICANN makes a host country agreement with the US freeing it from all kinds of US jurisdictions - including those of US courts. (c) ICANN is made subject only to international jurisdiction, with appeal authority lying with International Court of Justice which creates a special bench for Internet matters....

I am no expert in such matter, but believe that all of the above make imminent sense.

> Can we develop a statement incorporating these basic principles with some level of specificity regarding the needed institutional changes? Would the technical community be sympathetic to such an effort?

Very challenging situation...  you have organizations which recognize concerns with the 
present USG oversight model, but that does not imply coherence or vision regarding what
should take its place.   I'm happy to provide you my personal insights on what I believe is 
necessary but must warn you to consider purely from an principled-based discussion not
as any form of political value, i.e. by incorporation of such views that you might bring more 
organizations in support of single banner.  Until ARIN's members and Board have a chance
to discuss the situation, I do not even know if my unique perspectives will appear in any 
form of the positions ARIN takes going forward.

Best wishes,
/John

Disclaimers:  See above, first paragraph, last paragraph - definitely my views alone;
                    sole value of such views is limited to the sum of constituent electrons.

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