Subjective and Objective: who decides?

[Dan Krimm <dan@xxxxxxxxxxxxxxxx>]

Vittorio Bertola suggests, with respect to recommendation #9:

>>>>>
"It is, in my opinion, utopian to think that everything can be evaluated in
a measurable and objective manner: strings have intrinsic semantic values
and semantics are by definition subjective. Perhaps there should also be
recognition that, in the end, not everything can be measured objectively,
and in controversial cases there might be the need for a case-by-case call.
At the same time, it must be clear that ICANN's role is not to make
subjective judgements itself, especially when they fall into the field of
society and politics, but rather to evaluate what are the different
subjective judgements of the various stakeholders; ICANN should try to
promote consensus, and if consensus cannot be reached, try to evaluate what
is the course of action that could be acceptable for the broadest possible
number of stakeholders."
<<<<<

It is absolutely true that not everything can be evaluated in objective
terms.  The central question in this regard is *who* should make the
decisions regarding inescapably subjective issues?

ICANN's mandate, mission and institutional capacity is technical: keep the
Internet running smoothly and reliably, with regard to the technical
function of network addresses.  But it seems that this institution has been
reaching towards non-technical issues of public policy, while the
policy-making structures in place at ICANN remain inadequate to ensure
proper accountability.  ICANN has dealt with the problem of "lobbyists and
legislators" essentially by removing the legislators and having the
lobbyists write the legislation (and now suggesting that staff set up
"expert panels" to execute and enforce subjective judgments in the role of
internal private judge/jury and policy enforcement).  Lobbyists do not and
can not constitute or represent a full range of stakeholders in society,
and thus ICANN is structurally incapable of fully evaluating "the different
subjective judgements of the various stakeholders" whose interests are
affected by such policies and specific implementations of such policies.
ICANN's set of "stakeholders" is woefully inadequate to represent the full
range of stakeholders that exist in society at large.

And, since ICANN gTLD approval policy must necessarily be global in scope,
it is incapable of devising region-specific policy where region-specific
treatment is warranted, as in many such cases of lack of consensus.

ICANN should indeed try to promote consensus where possible, but in areas
such as defining "morality" or "trademark infringement" et cetera there can
and will be no global consensus.  This is a virtual certainty.  In such
circumstances, the only "course of action that could be acceptable for the
broadest possible number of stakeholders" is adjudication in formal public
lawmaking institutions outside of ICANN itself.

As Milton Mueller says, ex post, not ex ante, and outside the ICANN
process.  And preferably on a more local basis where regional consensus is
more likely than on a global basis.

ICANN is not a proper policy-making venue to introduce subjective-driven
regulation of the Internet, in any form or at any level.  It is utopian to
suggest that ICANN can possibly address this task fairly and judiciously,
not to mention legitimately from a legal standpoint within the jurisdiction
of the JPA and U.S. law.

ICANN, as a globally central and pervasive institution by nature, simply
has no business trying to make these sorts of decisions itself, especially
on a preemptive and preventative basis, and applying to the entire world.
Censorship of gTLDs at the core cannot be undone at the edges, but
censorship at the edges need not apply globally.

Vint Cerf in a recent BBC radio interview (
http://news.bbc.co.uk/2/hi/technology/6968322.stm ) has suggested that the
best place for control over filtering content is at the edges of the
network.  He was speaking on behalf of Google and its search-engine
policies.  To the extent that expressive characteristics of gTLDs create
corresponding issues at ICANN, which they do in this context, the very same
principles must apply.

Keep the core objectively neutral, and push subjective non-neutrality to
the edges.