[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal

Sat Jun 13 13:53:44 EDT 2015

Well, this still remains a free and open conversation ;) I was just trying
to draw the distinction between your set of arguments and the other line of
thought in the middle of which they occurred. I do note and appreciate that
yours was nonetheless a point completely in line with, while responding to
and cautioning about, one of the two opposite sides of the debate -- the
side that advises an international public jurisdiction for the
post-transition ICANN. And just to clarify, in response to a concern raised
by someone earlier in this thread, my understanding of what is meant by
"international jurisdiction" by the proponents of the idea here is a newly
created body of law by agreement among all/most concerned nations-states,
along with its specialized courts to enforce it.

Now, to begin wrapping up my "peregrinations" on this topic and, by the
same token, illustrating my "aspirational efforts at synthesis," ;) I'd say
this.

1) it doesn't seem like the question of ICANN's legal status and applicable
jurisdiction in the context of the PTI is going to be addressed before the
end of this year and so, not as part of the current transition if it were
to conclude by then.

2) this doesn't mean that the issue is going to go away and won't be taken
up at a later stage. Only that we'll have to operate at some point, and
maybe only for some time (or maybe not), under a private corporation
jurisdiction which is that of the state of California, which itself is
subject to US federal law.

3) to my earlier scenario (#1) concerned with access to US/Calif. legal
system for remote and not well or enough resourced Internet constituencies
and stakeholders, it has been suggested a number of things which for most
are rather like promises or palliatives based on hopes still to be tested.
It seems to me that structures such as ACLU or EFF (and their donors) also
respond to a political context, i.e. US politics, and we will have to wait
and see whether the incentives will appear for them to go fully and evenly
global in terms of where they might want to spend their money. Others such
as Open Society Foundations might also help, but again we are just betting
here on the will of private citizens.

There is the logistic based solution that has been suggested, which is to
use remote communication/conferencing tools. That's certainly part of the
solution. Some education will still need to be done so that the remote
stakeholders become fully aware as their counterparts in the applicable
jurisdiction that if as plaintiffs they just take the trouble to express
and write down their complaint in the vehicular language they are most
familiar with (or have someone write it down for them) they might, with a
few clicks, set in motion a legal procedure that will give them full and
fair hearing, and do justice to their cause. I guess that California
relevant judges, in this case, might also need to become fully aware that
in these matters they will also be dealing with customers from global
multicultural backgrounds (even though that doesn't change the letter of
the law.)

4) there remains another concern (which could have made it to my scenario
#2). What happens when USG decides to put a country on some black list for
some peculiar reason of its own which most of the nations-states disgree
with or do not find necessary (and which might not even have anything to do
with the Internet)? Wouldn't that country be shut off Californian courts
for any legal recourse in Internet matters? If so, is that an acceptable
state of affairs? What would be the remedy?

5) all of that being said, according to the BR gov comments there remains
the need for other (or some) governments to validate the choice of a single
nation's jurisdiction. To that I suggested a form of delegation be set up
adapted to this particular context. Among other things, I thought that
presents the advantage of ridding us of the "either US or international"
dichotomy. But it probably presents more challenges than I'm able to
anticipate. In any case, it remains to be seen whether the BR gov position
gets some traction within the PTI's GAC. That may be the direction to look
next for any follow up on the question of legal status /jurisdiction. And
then of course what the community response will be.

Thanks,
Mawaki

/Brought to you by Mawaki's droid agent

I'm waiting on the second half of the discussion, on how the IANA
contracts would work "in a fair and equal manner for a global
constituency."

I would mostly note at this point that we have to also be attentive to
how the US is operating in relation to the UN agendas, employing them
in pursuit of its goals (including the IP maximalist concerns both
Parminder and Michael are concerned with).

Seth

On Sat, Jun 13, 2015 at 5:38 AM, "Kleinwächter, Wolfgang"
<wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
> Hi Parminder,
>
> before you continue to confuse well intended but ill informed members of
the broader IANA/ICANN/Multistakeholder Internet community, I recommend to
study more in
> detail the four excellent studies by SSAC
>
> https://www.icann.org/en/system/files/files/sac-071-en.pdf
> https://www.icann.org/en/system/files/files/sac-069-en.pdf
> https://www.icann.org/en/system/files/files/sac-068-en.pdf
> https://www.icann.org/en/system/files/files/sac-067-en.pdf
>
> For newcomers who want to get a first overview before they go into the
details, I recommend the new IANA publication (see attachment).
>
> In the media we have a principle for good journalism which seperates
facts and opinions. Bad journalism is mixing facts and opinions. Opinions
are protected under Article 19 of the International Covenant of Political
and Civil Rights. So everybody has a right to express her(his) ideological
opinions and to argue for her/his case. Nothing is wrong with that. Even
extreme opinions are protected, as long as they do not harm third parties.
In contrary extreme opinions and hard fighting with arguments is needed to
find the right way forward if a community is entering uncharted territory
(which is the case with the IANA transition).
>
> There are always  people who (a.) want to keep the status quo, (b.)
innovate and stumble forward or (c.) want moving backwards in (their) safe
waters. But whatsoever: Any serious discussion of different opinions should
be based on full knowledge of the various facets of an issue under
discussion.
>
> There is an important difference here between a journalistic article and
an academic paper: In journalism, it is common practice that you pick just
one element which fits into your chain of arguments to justify your
struggle for a certain outcome. In an academic paper you have to be neutral
and to analyze all aspects, regardless if you like the facts or not.
Furthermore, any proposed step has to be checked against unintended
side-effects. Stresstests are an important element for that. Only with such
an approach - called also SWOT (Strengh, Weakness, Opportunity, Threat) -
you will find reasonable and workable solutions which balance the interests
of all involved parties (and makes everybody probably equally unhappy).
>
> Fortunately the two CCWG groups who are working now on the IANA
transition and new ICANN accountability models have taken the more academic
approach which - hopefully - will lead to rough consensus and a sustainable
step forward into the "uncharted territory". The interim results are
impressive. However there is still a long way to go. More voices are
welcome to join the debate.
>
> Wolfgang
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