Important blog post about the ICANN Accountability CCWG

[Edward Morris]

Hi Bill,

That call disturbed me as well. My immediate reaction was that we needed to 
compete with the BC by coming up with our own definition of public interest. 
I foresaw disaster if Steve’s definition was accepted. I immediately 
reached out to some of our more experienced members, learned a bit of the 
history involved and received some very generous offers of assistance to 
craft our own working definition of public interest. I want to thank Kathy 
and Joy, in particular, for their kind offers in this regard.

I should note that my preference from a philosophical standpoint, as I 
mentioned in our discussion earlier this year on the Council of Europe 
paper, is to do away with the term 'public interest'  all together. I reject 
the notion that there is any such thing as “public interest”, at least 
one that can be determined. I was tempted to bring out a bunch of 
mathematical formulas, write about Arrow’s impossibility theorem, Pettit's 
discursive dilemma and demonstrably prove that true social choice, or public 
interest, can never be truly determined. Tempted, but fortunately I’m not 
an academic so I was able to resist that temptation. :)

I then prepared to suggest that we make a collective NCSG effort to craft a 
definition of public interest,  but discovered that some in our community 
felt we were best served by the ambiguous undefined term we have now. Yes, 
it allows the powers that be to define the public interest as they see fit, 
but over time it just may be that our members may benefit from that more 
than they would from any tightly formulated strictly defined term. It’s 
something to think about.

Going forward:

1. I think the first step is not to immediately start working on an official 
NCSG definition of the “public interest”, but rather first to  determine 
whether we want such a definition or would prefer to argue that “public 
interest”, like pornography, is just something you know when you see it. 
What is in our member’s interest?

2. If we are to proffer a definition of “public interest” I’d suggest 
we view it more as a defensive effort than an offensive one. Usually in 
drafting quasi – legislative text you want narrowly defined terms to limit 
the scope of application. Not so here. We’re doing this primarily to shoot 
down the BC effort.  I’d prefer general definitional terms in our bread 
and butter areas, such as “human rights”, “free expression”, 
“privacy”, rather than more narrowly defined terms such as those 
favoured by the BC. In the inevitable compromise I’d suggest that broad 
terms would give us a better ability to pursue our goals in the future than 
as opposed to more  narrow ones.

3. If we can come to a coherent position, I agree that this would be an 
ideal topic for our NCPH discussion with the CSG. It’s current, important 
and allows us to attack the BC proposal at a time when we’re a bit more 
equal numerically than we are in the Accountability effort.

Happy Christmas all,

Ed

-----Original Message-----
From: William Drake <wjdrake at GMAIL.COM>
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Date: Thu, 25 Dec 2014 09:42:26 -0600
Subject: Re: Important blog post about the ICANN Accountability CCWG


Hi

I was slightly taken aback on the 16 Dec. accountability call that a few 
good people were quickly flocking to the Business Constituency's very narrow 
view that the public interest for ICANN is limited to the Availability and 
Integrity of Registrations and Resolutions.   See this CircleID post: 
http://www.circleid.com/posts/to_serve_the_public_interest_you_first_have_to_define_public_interest/

Not unusual though, people often gravitate to concrete language in the  
absence of equally concrete alternatives. Groupthink amidst complexity can 
lead to adumbrated conceptual searching.  One could argue this has happened 
often in many IG processes; the WGIG definition of IG  in the WSIS leaps 
most immediately to mind, but there are many examples.

It still shocks me slightly that after all these years and the AOC language 
that there's been no significant effort to do a study of the term's usage in 
telecom regulation and other arenas, cross-nationally not just in the US, In 
order to try and come to a functional and balanced working definition for 
the ICANN context.  I'd love to see us put forward an alternative and would 
happily partner with anyone who wanted to try.  I've proposed that NCSG and 
the CSG jointly organize a day long policy conference at the Buenos Aires 
meeting akin to the three NCUC has done, and there appears to be interest, 
we'll discuss at the DC NCPH meeting in January.  If that gets momentum, 
maybe we could do a session at which we present our own view or views for 
consideration. I don't see how the accountability process moves forward well 
without at least one or two solid contending formulations of this 
foundational issue.

Bill

Sent from my iPad
On Dec 23, 2014, at 10:07 PM, David Cake <dave at DIFFERENCE.COM.AU> wrote:

It is worth noting again that many of the 'Public Interest Commitments' made 
by new gTLD operators contain clauses and commitments that are probably not 
in the public interest at all, and that go against consensus policy 
recommendations. A case in point is many of them bring in the idea of a 
globally protected trade mark list, which was explicitly rejected as policy, 
and protects the interests of IP maximalist trade mark owners more than the 
public.

David

On 23 Dec 2014, at 5:54 am, Milton L Mueller <mueller at SYR.EDU> wrote:


But *within* the legitimate ICANN jurisdiction, there are broad
constituencies that need representation.  ALAC is one voice for them,
and I consider our NC/NP's to be another.  We are as close to a "public
interest" as one gets in a multi-stakeholder model, and I want us to stand 
up
proudly for that representation in the abstract, even if it makes total
sense to define specific issues narrowly on their own merits.

Yep, I agree. But that's also what makes the P.I. rhetoric so seductive and 
potentially dangerous.
I think we need to advocate public interest-oriented goals, as we understand 
them, but we need to bear in mind that other constituencies can also claim 
that mantle. Indeed, if you pay careful attention to ICANN's past 5-8 years 
you find that the term is most commonly used by the BC and most frequently 
invoked by GAC, Steve DelBianco and Marilyn Cade, usually to justify 
policies that we don't support.  

--MM
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