RE: From Christian -- Re: [gnso-ff-pdp-may08] Meta: Strawman - Process vs. Policy

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I would be very interested to hear any suggested improvements, not just wrt
general "due process" protections but specifically wrt the procedural
details and substantial scope of this limited process. 

For the record, talk of "due process" is a US Constitutional notion that is
entirely misplaced when we are talking about private parties contracting
with one another, whether in the US or elsewhere.  ICANN exists to manage
the DNS, that necessarily must include policy to mitigate criminal use of
the DNS, in order to avoid both harm to end users and potential liability to
contracting parties.

-Mike R.

-----Original Message-----
From: owner-gnso-ff-pdp-may08@xxxxxxxxx
[mailto:owner-gnso-ff-pdp-may08@xxxxxxxxx] On Behalf Of Mike O'Connor
Sent: Saturday, August 02, 2008 6:16 AM
To: Dave Piscitello; fast Flux Workgroup
Subject: Re: From Christian -- Re: [gnso-ff-pdp-may08] Meta: Strawman -
Process vs. Policy

My silence on this thread is partly due to it's quality.  This is a 
very rich discussion and I've still got several emails to read/ponder 
before I try to contribute.  But I'd like to merge two threads.  Mike 
Rodebaugh just floated a detailed proposal in the 
"[gnso-ff-pdp-may08] Question for Registrars - What kinds of 
solutions scare you?" thread, which I'm taking the liberty of 
attaching to this one.

Why?  Because I'm curious whether there are sufficient safeguards in 
that proposal to address the concerns that have been raised here -- 
and to look for suggestions on how it could be improved.

I see the glimmer of light at the end of the tunnel -- if we can get 
a speedy process defined (to thwart nimble bad-guys) that addresses 
due-process concerns, we're on the edge of a Very Good Thing.

m

At 08:02 AM 8/2/2008, Dave Piscitello wrote:
>Once again, since my words are being misrepresented again, I will 
>reiterate that there is a difference between private (which is the 
>opposite of public) and trusted.
>
>By (at least my) definition, trusted parties have some form of 
>"oversight" (in this case, certification) and some form of controls 
>over their behavior. How else do you assert trust?
>
>Now, if the accreditation/certification requirements (establishing 
>trust) demand some form of transparency, that's a valid topic for 
>discussion, and a laudable one.
>
>Next, consider the possible consequences of this transparency to the 
>accredited responder. Responders are put at risk of real-world 
>(physical) harm where criminal elements are involved. This is fact, 
>not fiction. The responder deserves no less concern for his safety 
>(and his family's) than the registrant. Transparency (e.g., public 
>disclosure of identities and contact information) is inappropriate 
>(my opinion). However, transparency could well take the form of 
>(again) trusted parties who are responsible for ensuring that 
>accredited responders do not abuse their privileges and thus protect 
>the privileges of registrants.
>
>I'm trying hard here to illustrate that I take your point about 
>safeguards seriously, but that you are misrepresenting what is being 
>suggested with the accreditation process. Please do not dismiss the 
>suggestion that accredited responders are targets for criminals lightly.]
>
>If we are going to debate  a topic, please let's debate it with more 
>precision. I think there are issues here that are being too quickly 
>reacted to in a very polarizing fashion. Democratic forms of 
>government typically have checks and balances.
>
>Perhaps we can make better progress if we agree to a refinement of 
>our process. If you offer a check (solution), consider also the 
>impact to a registrant. If someone proposes a check, and you have 
>misgivings over that check, by all means express that concern, but 
>please take a moment to think of a balance and offer that along with 
>your concern.
>
>Lastly, and please offline, I would be very interested in discussing 
>whether registering a domain is a privilege or a right.
>
>
>On 8/1/08 9:58 PM, "Mike O'Connor" <mike@xxxxxxxxxx> wrote:
>
>
>
>the list and Christian's email address aren't getting along at the
>moment.  so i'm acting as intermediary for him while we get it
>figured out.  Christian's post follows...
>
>m
>
>
> >Date: Fri, 1 Aug 2008 16:34:23 -0400
> >From: "Christian Curtis" <wilderbeast@xxxxxxxxx>
> >To: gnso-ff-pdp-may08@xxxxxxxxx
> >Subject: Re: [gnso-ff-pdp-may08] Meta: Strawman - Process vs. Policy
> >Cc: "Mike O'Connor" <mike@xxxxxxxxxx>
> >X-Antivirus: AVG for E-mail 8.0.138 [270.5.10/1585]
> >
> >     I wanted to comment on the discussion we had at the end of the
> > call, and I believe that this is the proper thread.  I'll leave the
> > straw man alone for now, but I'd like to comment on the NCUC's
> > broader concerns.
> >
> >     Democratic governments have certain safe-guards in place to
> > prevent those entrusted with power from running rough-shod over
> > personal freedoms we consider important.  One of these protections
> > is the electoral process itself, which ensures that those who
> > create the policies of the state and those who wield its power are
> > ultimately accountable to the citizenry at large.  Other
> > protections include separation of powers, access to courts, and the
> > constitutional enshrinement of certain fundamental liberties.
> >
> >     Professor Setlzer commented that she gets very nervous when
> > private entities start to act like governments.  Both I and the
> > NCUC, share this concern.  Private entities like registries,
> > registrars and ICANN are not encumbered by the same
> > liberty-preserving safeguards as governments.  For example, the
> > U.S. constitution protects its citizens from certain invasive or
> > unjust conduct by the government.  It places little, if any,
> > similar restrictions on similar conduct by private parties.
> >
> >    Any discussion about combating illegal activity at ICANN
> > inherently raises these problems.  There is a distinct danger that
> > remedies at this level could transform private parties into a sort
> > of 'speech cop' charged with determining what content is
> > permissible and what is not.  As the debacle with Dynadot and
> > Wikileaks demonstrates, it may well be in the best interests of a
> > registrar to ignore the free speech interests of its customer in
> > the face of a powerful angry party.  Thrusting registrars,
> > registries or ICANN into this role creates the danger that they
> > could be pushed to implement more restrictive or arbitrary controls
> > than the government can.
> >
> >     Though I respect Mike's comments about compromise generally, I
> > do not believe that it is appropriate with regards to this
> > issue.  ICANN does not exist to balance the policies of protecting
> > civil liberties and combatting crime.  ICANN exists to coordinate
> > the Internet.  The sort of policies we are discussing when we get
> > into balancing free speech concerns against crime prevention belong
> > to democratic governments with their carefully balanced structures
> > and controls.
> >
> >     Respectfully, I must vigorously oppose any proposition that
> > ventures into this forbidden territory.
> >
> >      --Christian
>
>
>
>
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