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

["Mike O'Connor" <mike@xxxxxxxxxx>]

I agree.  We need to be very aware/careful about this.   Thanks Dave.

At 10:11 AM 8/4/2008, Dave Piscitello wrote:
> Christian,
>
> When I say trusted and you or Wendy substitute "private", you change 
> the discussion from one I intend to be technical in nature to one 
> that has to do with law.
> When I say "monitoring" and you or Wendy substitute "policing", you 
> infer something altogether different (with at least some presumption 
> of the potential for abuse). Again, this context switch takes us 
> down a discourse path prematurely.
> It is very hard to think any technical problem through to 
> completion. It is harder still when the conversations bifurcate. I 
> find it simpler to study a problem from a technical perspective and 
> literally in vacuum, to see if a solution has technical merit (e.g., 
> does it work and scale). If it does, then I find it easier to look 
> at the non-technical impact. Jumping from "could I monitor X?" to 
> "is this a violation of a constitutional protection in the context 
> of a global Internet?" makes problem solving (for me at least) very difficult.
> IMO, trusted and private are very different concepts. So are 
> policing and monitoring. Cellular phone operators are one example of 
> trusted parties and they can be public or private depending on where 
> you live. Cellular phone operators also monitor call signal 
> strength, endpoint (phone) location, etc.   IMO, this is not a policing action.
> I'm happy to discuss the concerns you raise. I would like us to be 
> conscious of how word-swapping affects what we discuss.
> On 8/3/08 4:56 PM, "Christian Curtis" <CCurtis79@xxxxxxxxx> wrote:
>
>    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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