Re: [Ianaplan] What's happening at ICANN?

Seth Johnson <seth.p.johnson@gmail.com> Sat, 17 October 2015 18:05 UTC

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References: <56181181.50002@gmail.com> <D23F19BE.27A31A%Jonne.soininen@nsn.com> <561D47DD.2010704@acm.org> <CAJkfFByEgaUVGR8APfoyNv_y4Qpx9FhPrEy57Bk5j1vgmyBeJg@mail.gmail.com>
From: Seth Johnson <seth.p.johnson@gmail.com>
Date: Sat, 17 Oct 2015 14:04:18 -0400
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To: Avri Doria <avri@acm.org>
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Subject: Re: [Ianaplan] What's happening at ICANN?
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On Wed, Oct 14, 2015 at 8:33 AM, Seth Johnson <seth.p.johnson@gmail.com>; wrote:
> IETF has also been able to emphasize a stance more about "technical
> merits" whereas ICANN deals with areas that are more relatable to
> policy.
>
> Indeed, that distinction is why the naming portion of the IANA
> transition has been characterized as more problematic in the
> transition.  (However, that's an illusion, as will become evident in
> due course.)
>
> Here's the key to this though: the "more technical" areas have had the
> ability to operate in that way because they are in a stewardship
> context where governmental inroads have been proscribed.  The NTIA
> "backstop" is related to that stewardship context in the following
> ways: 1) it has afforded a focal point for "normal" politicking, a
> place to lobby if ICANN were to start doing things we don't like in
> our ("exceptional" US) environment, plus i2) t has meant the US
> government was involved, so -- by a hairy process, because we do allow
> private corporations to do things, even for the government, that our
> government is not allowed to do -- there might be some prospect of
> suing the government if it had allowed a circumstance to arise where
> ICANN allowed intergovernmental policy to invade our fundamental
> rights.


Indeed, this is sort of what the EU Court of Justice has just done
with the Safe Harbor Agreement.  They made it viable by also setting
up a Charter of Fundamental Rights based on the several nation's
recognized rights and explicitly required national authorities to
review whether treaties supported those rights, thereby giving the
court a basis for applying strict scrutiny, essentially saying that's
what the Irish Commissioner failed to do.  But the principle is the
same: the fundamental rights are limits set on each country's
government by its people (not by law, but by founding acts that set
their priority).

While the US is involved, there's some sort of a reasonable basis for
trying to uphold fundamental rights claims against the Department of
Commerce, though we don't have a very clear or strong legal basis to
overcome the fact that the US is intermediated by a private
corporation (against which we don't have an ability to press
fundamental rights claims).  Whereas the EU set that sort of
arrangement up with a Charter plus law requiring the national
authorities to review things like the Safe Harbor Agreement.  No act
of a private corporation nor treaty among governments alone could do
that.


Seth



> We haven't done a lot in either of those avenues, though ICANN has
> occasionally gotten into problematic areas.  But 1) that's because
> within the US the government does avoid meddling in fundamental
> rights, especially in communications areas -- our systems of recourse
> function that way so we hardly have to think about how we take our
> rights for granted; and 2) the relation to the US also just gives us a
> general sense of operating in that context.
>
> The thing the "more technical" folks don't get is that removing the US
> and privatizing doesn't simply privatize -- it puts us in the
> intergovernmental context.  That means as long as our various own
> governments keep acting like we're accustomed, we won't see a
> difference.  But as soon as the intergovernmental frame is in place
> and our own governments choose to lay claim to that legal basis, it
> will "simply apply," and, for instance, ICANN won't be in any sort of
> position to stand against intergovernmental pressure.  GAC's role will
> be very different -- even without changing anything structurally in
> ICANN.  Neither will the IETF.
>
> There's a fundamental failure to understand that there's huge change
> in the nature of the context involved in the transition -- and that
> will affect even areas besides the naming functions to which we've had
> our attention directed.  The tech community's general orientation
> toward "just not changing the way we've done things" is actually
> keeping them from confronting the nature of the change.
>
>
> Seth
>
>
> On Tue, Oct 13, 2015 at 2:05 PM, Avri Doria <avri@acm.org>; wrote:
>> Hi,
>>
>> One essential difference is that IETF has an appeal mechanism on process
>> to the Internet Society Board of Trustees.
>> This is the backstop for the IETF.
>>
>> >From what I have learned in the ICANN Accountability process, the most
>> legal training I have ever had, the IETF as the IETF might have trouble
>> suing anyone given that is is not a legal person.  Fortunately the IETF
>> does not live in an environment where suits, of either kind, are the norm.
>>
>> avri
>>
>> On 10-Oct-15 12:57, Soininen, Jonne (Nokia - FI/Espoo) wrote:
>>> Hi Brian,
>>>
>>> like Bernard and Dave said, part of the story is the press tries to spin
>>> an interesting story. Partly the story is that there are strong emotions
>>> in play at the ICANN in this topic.
>>>
>>> So, the topic is ICANN accountability. The claim is that as long as there
>>> was the NTIA contract on IANA there has been a backstop on ICANN's
>>> decisions, especially the board's. The theory is that if ICANN (the staff
>>> and the board, not the community) would do something silly NTIA could at
>>> least threaten to take IANA away and pressure ICANN to reconsider the
>>> decision get to the right path. However, with the IANA stewardship
>>> transition there would be no backstop anymore and potentially a future
>>> board could go rogue and do whatever they want disregarding the community.
>>> Therefore, there needs to be new accountability mechanisms.
>>>
>>> The main accountability mechanisms discussed have been spilling the
>>> complete board, removing a board member and control/veto the ICANN budget
>>> and bylaws changes. There is pretty much consensus that in some form or
>>> another these are reasonable requirements. However, the discussion is
>>> about what is the right enforceability mechanism. Enforcement means how
>>> can you legally enforce ICANN/board do something - basically, how can you
>>> sue ICANN if the board/staff doesn't do what the community expects it to
>>> do.
>>>
>>> In the IETF, we have a bit different approach to these things. I wouldn't
>>> think we would have ever the discussion the IETF community should be able
>>> to take the IESG or IAB to court. Interesting thought, though... ;)
>>>
>>> I hope this helps.
>>>
>>> Cheers,
>>>
>>> Jonne.
>>
>>
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