Important blog post about the ICANN Accountability CCWG

[Stephanie Perrin]

1.  This has been a great discussion on the issue folks.  It is 
complex.  I knew if I waited long enough everyone would have said 
everything I wanted to say, which is the great joy of working in this 
community.  Thanks and Happy Christmas/Holidays/New Year all.
2.  Sam just made the point I was ruminating about making.  Several 
years ago Deborah Hurley wrote a nice little book on Human Rights and 
the Internet/info society, entitled Pole Star (available in english 
french and spanish).   The key point is that the concept of balancing 
rights is closer to a guiding star that is unreachable but illuminates 
and sets direction.  And it looks different in the sky, depending on 
where you start from.   [Forgive the religious connotations, but if you 
are here in Canada you are hearing a lot of carols about guiding stars 
as we approach the season of Epiphany.] On a practical level, since I 
showed up at ICANN nearly two years ago I have been trying to talk 
instead about "fundamental fairness", which has been repeatedly 
dismissed as undefinable.  Frankly, defining public interest is 
impossible, as Milton has pointed out, and sorting out fundamental 
fairness as a concept is closer to the principles of justice by which we 
live than trying to define "the public interest", particularly in a 
multi-national multi-stakeholder assembly such as ICANN.  I believe that 
the expression "public interest" and its inclusion in the ICANN remit is 
very problematic, almost a poison pill, and I would strongly support 
those who do not want to define it.  I agree that a workshop to discuss 
how to deal with it when it arises (or is cited, or is used as an excuse 
to trump rights), would be very useful.
3.  Why do I feel as strongly as I do on this, even though I have not 
formulated my theory yet and am in learning mode?  Anyone who has worked 
in government must be forgiven for having their carbon monoxide 
detectors start screeching when the concept of the 'the public interest" 
is introduced in law, regulation, policy, or contract, because it often 
(usually) means the abrogation of individual and collective rights in 
favour of a broad, undefined "public interest" which often (usually) 
means public safety (law enforcement and security) or broader market 
access for trade.  [Why the reference to carbon monoxide detectors?  
because you get CO as a product of combustion where there is a lack of 
oxygen, which is often (usually) the situation where law enforcement, 
national security, and trade interests gather to set policy/law/and 
treaty.]   In trade agreements, it has often meant the trumping of local 
laws which had been established to protect consumer interests, the 
environment, and privacy.....but never national security, which has 
primacy.  I believe these points have already been made, I am 
reiterating.  My views may also be coloured by my Canadian context, 
where our constitution is based on the goals of peace, order and good 
government, not liberty and the pursuit of happiness.
4.  Sam's point about ICANN being but one stakeholder in a community 
that looks at Internet governance issues points to one way to defeat 
attempts by certain groups to define "the public interest".  It may not 
be the role of ICANN to define it for other communities.  Why define 
public interest, when you have declined to define what a domain name 
is?  Arguably this is much more within the mandate. (if anyone can point 
me to the authoritative, non-circular definition of domain name I would 
be grateful)
5.  On a slightly unrelated note, I just read the documents which Nigel 
Hickson has circulated on the 
http://unctad.org/meetings/en/SessionalDocuments/CSTD_2014_Mapping_Internet_en.pdf 
which will be submitted in May to the WSIS discussion.  I am concerned 
because of the remarkable lack of consistency in the depth of the 
analysis.  A lot of the issues i care about are discussed briefly, with 
the conclusion that there is a "knowledge gap" on the issue.  It needs 
to be said that this usually means there is a policy and implementation 
gap as well, and unfortunately the response/mitigation that I have 
witnessed on the part of ICANN, is usually to call for further study and 
bury the matter.  Is it worth NCSG taking a look at this document and 
providing comments of some kind?  I think the stated deadline of January 
31 is out of the question, but this seems like a useful summary of the 
issues and a not bad jumping-off point for our own analysis.  I would 
stress that I am thinking in terms of mapping where ICANN's narrow 
remit, interests, and accountability to other actors lie, not in 
expanding them.  Writing a 50 pager like this seems to me to be a lot of 
work....
Regards to all.
Stephanie Perrin
Eat turkey.  Tryptophan helps you keep calm and carry on.
On 2014-12-27, 13:21, Sam Lanfranco wrote:
> I might sound like a kid beating on a one-note drum here, but it is 
> useful to remind us that ICANN is not the first or only organization 
> to have to deal with this issue. History gives us excellent models of 
> how this can be approached with or without organizational structures. 
> Consider human rights and decent work, two areas that comfortably fall 
> under the heading of "public interest" and both integral to humanity's 
> "core values" Our "empirical eye" tells us that across the globe human 
> society falls more than a bit short in achieving acceptable levels of 
> performance in these two areas. We have responded using the same idea 
> to approach to both, but doing so in different ways. We created the 
> Universal Declaration of Human Rights (UDHR) as a navigational aid 
> (fixed star) for the pursuit of human rights everywhere. We created 
> UDHR without an organization, and in our wisdom UDHR was vested with 
> neither judicial, legislative nor regulatory authority, which as it 
> should be. It is surrounded by a whole constellation of human rights 
> entities engaged in the pursuit of human rights in ways that feed into 
> appropriate regulatory, legislative and judicial venues elsewhere.
>
> In the area of decent work, we humans created the International Labour 
> Organization (ILO) with a mandate to promote and pursue "decent work". 
> As an organization the ILO was vested with neither judicial, 
> legislative nor regulator authority. With its own multistakeholder 
> model the ILO has worked for a century using something like a blend of 
> ICANN's DG, WG, and PDP processes, with results at all levels 
> available for use by stakeholders in their own regulatory, legislative 
> and judicial venues elsewhere. That is as it should be.
>
> What does this tell tell us about ICANN? It suggests several things. 
> First, ICANN as ICANN is but one stakeholder in the process of 
> defining rights and obligations within the Internet ecosystem. It is 
> neither the torch bearer, nor the keeper of the flame. It is a 
> stakeholder. Second, the embodiment of rights and obligations, as a 
> declaration (e.g. UDHR) or as the mandate of an entity (e.g. WHO), has 
> to be in universal terms, to be used as a "fixed star" navigational 
> beacon for all stakeholders, including for ICANN as a stakeholder.  
> Third, ICANN cannot wait for the global stakeholder community to 
> arrive at a declaration on rights and obligations within the Internet 
> ecosystem but it can within its own business develop case-by-case best 
> practice approaches to dealing with the issues. The end result within 
> ICANN will be a case-based process, but it will be case-based wisdom, 
> not case-based law. This will also be useful for ICANN's position 
> around these issues in the wider Internet ecosystem DG, WG, PDP 
> processes, as well as useful for ICANN's stakeholder constituencies as 
> they address the same issues "at home" and elsewhere. Lastly, in 
> addition to raising awareness and engagement, such a strategy will 
> reduce the risk that forces will coalesce around vesting global 
> regulatory authority in multilateral entities, in the UN, or in sister 
> agencies such as the ITU. They too are stakeholders in the process, 
> and also not "the" torch bearer, nor "the" keeper of the flame.
>
> Sam
>
> On 27/12/2014 10:53 AM, Milton L Mueller wrote:
>>
>> I totally reject that presumption.
>>
>> All behavior is private. Only individuals or small coordinated groups 
>> act and behave. The public interest cannot be much different from an 
>> aggregation of a lot of people’s private interests. The idea that we 
>> are all devils individually but collectively become angels is a 
>> nonsense that I thought had died with various forms of totalitarianism.
>>
>> Again I think it is much better to talk about these problems in the 
>> context of rights. If a specific private actor does something that 
>> violates one or more peoples rights then there is a regulatory problem.
>>
>>
>

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