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

[Seth Johnson]

On Sat, Jun 13, 2015 at 1:53 PM, Mawaki Chango <kichango at gmail.com> wrote:

I continue to reserve my right to observe!  :-P :-)

Note that you asked about Togo; everything here is for your question
from that point forward. My responses are directly to you when asked,
and none of it contributes to a debate in which I chose a "side."
:-)


Seth

> 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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