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

["Christian Curtis" <CCurtis79@xxxxxxxxx>]

    Dave, please don't misunderstand me.  I'm not referring specifically to
all attempts to identify trusted sources, and I'm not referring specifically
to the proposal you brought up at the end of the call.  Honestly, that
exchange happened so quickly that I didn't quite understand what you were
proposing.  I'm speaking more directly to the dangers that are inherent in
endowing private parties with a policing function.  Mike O'Connor's comments
about reaching a compromise between individual rights and the needs of law
enforcement made me particularly nervous, because I don't believe that ICANN
is the proper entity to balance these concerns.

    Mike Rodenbaugh, I think that you might actually be making my point for
me.  It is that fact that constitutional protections do not apply between
contracting parties that makes me nervous.  We've been asked to address the
question of criminal conduct here.  To some degree, law enforcement agencies
are applying pressure on us to do their jobs with the assertion that we're
the only ones who can.  I'm really not comfortable taking that role.

    Part of the inefficiencies inherent to law enforcement are there to
preserve justice and individual liberties.  It would, after all, be far more
efficient to combat crime without trials, warrants, or defendants' rights.
When it comes to speech crimes it's even more efficient to require the
speaker to get permission before being allowed to speak at all.  Free
societies, however, specifically require the more inefficient route for good
reason.  I'm not comfortable circumventing these limitations by placing the
onus of crime prevention on private entities.

      --Christian

On Sat, Aug 2, 2008 at 9:15 AM, Mike O'Connor <mike@xxxxxxxxxx> wrote:

> 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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