Important blog post about the ICANN Accountability CCWG

[Carlos Raul Gutierrez]

Dear Milton,

The public interest is not an open ended, but a relative standard. And in
this case is relative to the behavior of private agents. The public
interest is to be protected, if there is danger that private interest may
undermine it. Then you have to define it and in that case, it is necessary
to "align" private behavior with the public interest, as ICANN does in its
contracts with its contracted parties. In that sense, even if ICANN is not
a regulator (not being a public entity, its difficult to call it that way),
it fulfills a regulatory role in checking on the compliance of those
contracts "in the public interest".

But here we are talking about a different level, the level of ICANN
accountability and even its legitimacy to play the role described above.
ICANN is not to define an absolute public interest. ICANN just opened the
door to some "advice" by public entities through the GAC, and maybe even
trough ALAC as you seem to suggest, for a wider consideration of the public
interest. Its only logical, because ICANN is a private agent. But in my
view it is the case for GAC and/or ALAC to argue for the public interest if
they see that ICANNs contracted parties may deviate and harm from the
public interest, and ICANN is not checking on them. Particularly in the
fine segmentation of the new gTLDs.

I don't think that David Johnson idea that a contract, as opposed to a deep
revision of the by laws, is a better way to keep ICANN within narrow
margins.  If ICANN is not going to accept a much larger share of
responsibility and greatly enhance its compliance efforts (by keeping them
organizationally and/or structurally at arms length form operational and
policy issues, so there is no risk of capture), we wont be able to convince
the rest of the world that we are read for the transition of the IANA
stewardship. In other words I think this discussion has to continue and
come to a conclusion within the WS 1!

So, let's keep discussing and don't trow the towel in the search of a
better public interest definition, but moreover WHO is the one responsible
to check for that relative standard at the highest level as opposed to some
private behavior: the Board? an enhanced GNSO council with direct
participation of GAC and ALAC from the very beginning? A new external
oversight body? The Cross community working groups based on ad hoc
charters? the list may grow indefinitely.

Merry Xmas

*Carlos Raúl Gutiérrez*
ISOC Costa Rica Chapter
skype carlos.raulg
+506 8335 2487
________
Apartado 1571-1000
*COSTA RICA*

2014-12-22 13:37 GMT-06:00 Milton L Mueller <mueller at syr.edu>:

> I agree with Sam's analysis largely. Dan, the problem with 'the public
> interest' is that it is a completely open-ended standard that can be
> claimed by anyone for virtually any reason. The NSA thinks its surveillance
> was in the public interest (protecting us against terrorism). What David
> Johnson is trying to do is to keep ICANN's authority within narrow,
> well-defined bounds. This means not allowing ICANN to leverage its
> centralized control of the DNS root to pursue all kinds of ancillary goals
> in the name of a broader public interest.
>
> Of course we can have a dialogue about whether any ICANN policy, e.g., new
> TLDs, is in the public interest, but to make these arguments meaningful,
> one must define in more detail what criteria and results one is using to
> determine how 'the public interest' is served. It's also useful to know
> what "public" one is talking about - a definition that is almost always
> elided in these discussions.
>
> > -----Original Message-----
> > From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf
> > Of Dan Krimm
> > Sent: Monday, December 22, 2014 1:22 PM
> > To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> > Subject: Re: [NCSG-Discuss] Important blog post about the ICANN
> > Accountability CCWG
> >
> > Sam,
> >
> > I have to say, to the extent that public interest concerns in fact arise
> within
> > the jurisdiction of ICANN's remit, there does need to be representation
> of the
> > public interest in ICANN's policy deliberations.
> >
> > Making the world an authoritarian dictatorship would greatly simplify
> policy-
> > making, but simplicity per se is not the highest priority of a democratic
> > political organization.
> >
> > ICANN's jurisdiction will not cover *all* issues of public interest, and
> to that
> > extent ICANN need not be involved in the broadest range of such issues.
> But
> > where the public interest is naturally involved in issues addressed by
> ICANN, I
> > think that public interest needs to be represented within ICANN's names-
> > and-numbers policy processes.
> >
> > And sometimes at ICANN the public interest is served by simply getting
> out of
> > the way, and that is what public interest advocates push for: not
> setting up
> > formal, regularized, bureaucratized processes to impose content-based
> > censorship on TLD strings, for example.
> >
> > ICANN can't be the public interest cop for every possible public issue,
> but we
> > shouldn't throw the baby out with the bathwater.  There is some overlap
> > within ICANN's legitimate policy domain, and the public very much needs
> to
> > be represented within that domain.
> >
> > There will be gray areas that we encounter along the way and we may need
> > to discuss carefully whether certain issues fall within or outside of
> ICANN's
> > legitimate jurisdiction -- in fact, there have been such debates within
> ICANN
> > since the beginning, as I understand it.  These are healthy discussions
> when
> > engaged in good faith.
> >
> > Dan
> >
> >
> > --
> > Any opinions expressed in this message are those of the author alone and
> do
> > not necessarily reflect any position of the author's employer.
> >
> >
> >
> > At 12:13 PM -0500 12/22/14, Sam Lanfranco wrote:
> > >Content-Type: text/html
> > >X-MIME-Autoconverted: from 8bit to quoted-printable by mx2.syr.edu id
> > >sBMHDuXW003978
> > >
> > >
> > >David Johnson's blog argues that the democratic potential for ICANN
> > >membership is in danger of being co-opted by groups that want a very
> > >narrow and limited conception of who the members should be and a very
> > >expansive conception of what their powers should be. see:
> > ><http://www.internetgovernance.org/2014/12/19/icann-accountability-a-
> > co
> > >up-or-a-contract/>http://www.internetgovernance.org/2014/12/19/icann-
> > ac
> > >countability-a-coup-or-a-contract/
> > >
> > >It is important to go beyond the nature of this risk and look at the
> > >source of this risk, those pushing ICANN to be a public interest
> > >regulator. Johnson argues that "If ICANN took the "public interest
> > >regulator" option off the table, the "accountability" discussion could
> > >be greatly simplified." This touches on a deeper question of whether or
> > >not ICANN is even the appropriate venue for protecting the "public
> interest"
> > >here.
> > >
> > >Using the discussions around regulated professions gTLD (e.g. .health,
> > >.doc, etc.) it becomes clear pretty quickly that there is little ICANN
> > >can do to address the "public interest" concerns there, even if it had
> > >some regulatory power. See my blog "Rethinking, and Redirecting the
> > >Global Health Strategy on the Proposed .health gTLD" at
> > ><>samlanfranco.blogspot.ca .
> > >
> > >Most public interest concerns will have to be addresses bottom up in
> > >struggles around policy at various levels within countries, within
> > >professions, and using appropriate regulatory tools and laws at those
> > >levels. ICANN cannot be all things to all concerns, and attempting to
> > >do so will compromise ICANN, while public interest concerns will still
> > >have to be addressed elsewhere.
> > >
> > >
> > >Sam L.
>
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