[governance] DNS [Property or Public Good]

[Garth Graham]

While I admire the clarity of your first law, it feels to me that, when you define the corporate as a person and then state an onus on other "persons" to prove that a corporate action leads to public detriment, you get something backwards, particularly with respect to obligation, responsibility and accountability .  And, as an aside re values, I see obligation as a corollary of the Golden Rule.

In common law, the relation of the individual to the state still remains - that which is not stated is not implied.  As a Canadian, I am aware that my fellow Canadians often delay acting on their obligations because there might be a rule somewhere that forbids it.  That transference of responsibility on to the other is the dark side of being "nice." But the fact remains that, absent a rule that says otherwise, we are free to act without permission, keeping in mind that action has consequence for which we are responsible.  This is not true for corporations. They do become corporate within a framework of statutory instruments and regulations and so their authority to act can be and often is circumscribed by the state in many ways, particularly with respect to primary purpose.

I mention this because I want to introduce an aspect of accountability that nation states do not usually include in their authorization of incorporation.  This is an aspect of accountability that is also absent from discussions of Internet Governance.  This the obligation of decision-makers in corporations (and in governments, and in the decision makers in the Internet Governance ecosystem) to explain their intentions and reasons publicly, fully and fairly. BEFORE THEY ACT.  It is a responsibility of corporate management to provide adequate public explanation before the fact that they have addressed both the issue of the prevention of harm and the impact question of who benefits and who pays.  They are not free to act first and seek forgiveness later.  True, we do't demand or legislate they they do this, but we could and should.

Explanation before the fact has certain benefits (public goods):
  - It reduces driving forces reasonably seen as harmful
  - It allows for an action to define in advance its own standard by which it's effectiveness and fairness can be measured after the fact.
  - It allows knowledgeable citizen organizations and individuals to sensibly and publicly challenge those intentions and reasons. 

For example, while ICANN does have an elaborate "community" process of challenge and response related to its policy intentions before the fact of deciding them, its internal discussions of accountability still only assume after the fact explanations of its actions. ICANN has achieved a degree of effective process of accountability before the fact without including that process in its contemplation of mechanisms of accountability.

When you say, "Every person shall be free to use the Internet in any way that is privately beneficial without being publicly detrimental," that feels to me like another acceptable corollary of the Golden Rule.  But then saying, "the burden of demonstrating public detriment (falls) on those who wish to prevent the private use," would seem to me to preclude the resolution of the impact question of who benefits and who pays before the fact of action.  Who benefits and who pays if we do that?

GG

On 2014-04-03, at 8:47 PM, Karl Auerbach wrote:

> Almost any given thing is a blend of useful/good and bad - rights to
> benefit from that thing in some way and obligations that arise.  (We
> often tend to overlook those obligations.)
> 
> Sometimes those benefits accrue to - and obligations fall upon - each
> individual person equally or upon all of us as a community.  I would
> suggest that those kinds of things are "public" values.
> 
> Other times those benefits and obligations are more focused on a single
> identifiable person (a natural human or a legal creation such as a
> corporation).  I would suggest that those kind of things are "private"
> values.
> 
> When we talk about private property we tend to mean things that land
> mostly in that latter category, but still (we hope) remember that even
> the most private of things tends to be subject to the public in some way
> (often in some way that occurs more as an exception rather than the norm.)
> 
> So the problem I've wrestled with is what kind of principles can we use
> to balance those public interests with the private ones.
> 
> Here's what I came up with:
> 
> First Law of the Internet
> http://www.cavebear.com/cbblog-archives/000059.html
> 
> + Every person shall be free to use the Internet in any way
>  that is privately beneficial without being publicly
>  detrimental.
> 
>   - The burden of demonstrating public detriment shall
>     be on those who wish to prevent the private use.
> 
>       - Such a demonstration shall require clear and
>         convincing evidence of public detriment.
> 
>   - The public detriment must be of such degree and extent
>     as to justify the suppression of the private activity.
> 
> I have found this useful.  However, it represents a balance between "me"
> and "we" that tends to favor the former over the latter.  That may be a
> balance that reflects my US/Canadian roots.  It would not surprise me to
> learn that people from other cultures would strike a different balance.
> 
> To my mind, finding these kinds of statements of principle would be
> useful to help us navigate our way through the maze of choices that we
> have to make as we figure out how to govern - or not govern - various
> aspects of the internet.


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