AW: [governance] Is the Internet Really Free of US Control?

Mon Oct 17 06:07:50 EDT 2016

Hi Parminder,

Thanks for your article which adds another perspective to the mainstream discussion around the IANA transition. The text summarizes your well known opinions which you have distributed over this list since years. Your text is indeed more a political statement than an analytical academic paper. The reader needs a lot of background knowledge about all the facts which you do not present in your paper. You just pick only those facts which feed your opinion. This includes the risk for uninformed readers to get a one sided picture. My understanding of good journalism is that it has to be based on two principles: Give both sides and separate facts and opinions.

One can agree with some of your arguments, although some of your forecasts about the role of US courts are speculative. To enhance ICANNs accountability is an ongoing challenge and here I can agree with you. 

But my main problem with your article is that you do not seriously analyze the pros and cons of the new mechanism which came out from the three years of open, transparent and bottom up multistakeholder discussion. 

You did not analyze the implications of the new designator model and the new role of the empowered community with its strong new powers to spill the board or to reject the budget;
You did not analyze the implications of the new 3E approach (engagement, escalation, enforcement);
You did not analyze the procedure for the election/selection of ICANN Board members with its internal checks and balances and its high hurdles against any type of capture by one interest group;
You did not analyze the potential of the distributed multistakeholder oversight mechanism (the AOC reviews) which are now part of the bylaws;
You did not analyze the enhanced role of the ombudsman;
You did not analyze the ongoing discussion on enhanced accountability for the councils and committees of the supporting organizations and advisory committees;
You did not analyze the open, transparent and bottom up PDPs which has introduced a new culture in the development of global policies around a public resource;
You did not analyze the ongoing debate on respecting human rights (as laid down in international law) within ICANNs PDPs under the workstream 2 program;
You did not analyze the what does it mean that after the IANA transition paragraph 68 of the Tunis Agenda, which calls for an equal status of all government, is now implemented;
You did not analyze how enhanced intergovernmental cooperation (within the GAC) is now embedded into a multistakeholder environment (with the GAC as part of the empowered community).

You just state that ICANN is a one-stakeholder group (dominated by large US business) and the new oversight mechanism is too weak to be effective. How do you know this? Did you make a stresstest?
Do you really believe that the 193 governments of the UN member states will be able to agree on a treaty under international law with a better solution for the management of Internet names and numbers in a reasonable time frame? 

You propose, the current multistakeholder structure and working methods of ICANN can remain protected as such in this (inter-governmental) agreement. How this will work in practice? 

We had this discussion in Tunis. The EU proposed to give issues of principle into the hands of an intergovernmental council and leave the day to day operation in the hand of ICANN. Nobody could define in 2005 the borderline between the level of principle and the day-to-day operation. 

The issue came back in 2010 when India proposed the CIRP in the UN. We discussed this during the 6th IGF in Nairobi (2011) when the delegate from the government of India was unable to explain how a CIRP oversight over IETF could be implemented in practice. 

It would have been helpful if you would have discussed in your article the lessons learned from the debate in 2005 and 2011. Just to restart such a debate in 2016 is  at least in my eyes - not so constructive and helpful. 

The lesson I learned is that it is much better to look forward and to innovate policy making than to reactivate the diplomatic instruments of the 20th century to settle the 21st century problems. Kofi Annan, the former UN Secretary General, told the WGIG members in 2004, that such a technical innovation as the Internet needs a governance mechanism, which is also innovative. The multistakeholder model is such an innovation. It has the potential to move from a hierarichal oversight mechanism to a network oversight mechanism with a new quality of internal checks and balances. In the case of ICANN, the AOC type of issue based regular reviews is a good beginning which needs to be further strengthened. 

The multistakeholder model is still in its infant stage. The system is far from being perfect. The IANA transition is just another stumbling step forward. But it is a step into the right direction (as you acknowledge). 

It is an irony of life, that your mistrust into the functioning of the multistakeholder model mirrors the structure of the arguments used by Ted Cruz in his crusade against the IANA transition. The good news is that Ted Cruz failed. And the good news is that the governments of the G20 Summit in Hangzhou (September 2016) reaffirmed the commitment to a multistakeholder approach to Internet governance, which includes full and active participation by governments, private sector, civil society, the technical community, and international organizations, in their respective roles and responsibilities. We support multistakeholder processes and initiatives which are inclusive, transparent and accountable to all stakeholders in achieving the digitally connected world.

Best wishes

Wolfgang

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