[npoc-voice] inputs regarding Sam´s comments on IG

[mlemineur@xxxxxxxxxxxx]

Dear all,

My comments and opinions regarding Sam´s inputs in between the lines.

Best regards,

Marie-laure


Two Governance Issues facing ICANN ------------

I am first sending this to you privately because I want some feedback.
I am always aware of the limitations of being a new person in a group
dealing with important issues, and always aware of the challenge of
understanding things in context, and scope for misunderstanding
certain elements and aspects of what is going on. Hence, I would like
some feedback on the following comments.

As I dig deeper into the issues and challenges facing ICANN and the
global governance of the Internet I see two intertwined issues. I
will just sketch out the bare bones here in the interests of not
burdening you with details.

One issue is the heart of the struggle over the governance of the
Internet, and that issue is control over governance as between ICANN
and ITU. The drivers for that struggle come from several sources, the
most obvious being the interests and wishes of ITU member states to
have more formal control over the Internet. The issues of freedom of
speech, access to information and human rights are often cited here,
although many have observed that member states routinely exercise
that control in any event.

MLL <<<<<<<<<< Definitely…power and ego struggles among countries have
always existed and will always do. The object of the struggle
varies>>>>>>>>>>>>>>>

 Observe how China closed down online
discussion on the recent terrible rape/murder case in India, because
commentators were using the episode to talk about the lack of
openness in the discussion of Chinese issues.

MLL <<<<<<<<<<<<< I completely and fully agree with this. Many are the
example of the eagerness and despair of governments to control the
Internet. While we were in Azerbaijan, the last day of the IGF, I read in
the newspapers that an Iranian blogger had died tortured by the police
because of his blog while we were all discussing the transnational nature
of the Internet……Ironic and sad no?>>>>>>>>>>>>>

 Since nation states exercise this power now, and are relatively immune to
external criticism, a case might be made for arguing that the primary
interests of many nation states have more to do with matters of trade
and intellectual property than they do human rights and freedom of
expression, matters that require international agreement rather than
just sanctioned national behaviour.

Much of the global interest still exists as a &#147;global commons&#148; with
elements to be beneficially controlled by interested stakeholders
that rely on state power, in particular, governments themselves, and
commercial interests. Civil society stakeholders frequently have a
mixed and complication relationship with both government and
business. As a result, national Internet control struggles are likely
to persist and, as a consequence, they raise the stakes on who should
govern what as between ICANN and the ITU. It is easy to see why
nation states can have a preferential option for ITU.

MLL <<<<<<<<Obviously most governments feel more confortable with the ITU
model than the ICANN model where they are represented through the GAC and
have to live with the bottom down-up model>>>>>>>>>>

It is made up of member states, member states heavily influences by
commercial interests. This gives the two of them an upper hand. Lastly, I
would not dismiss the extent to which the ITU has had to re-invent itself
as cellular phone technology displace regulated telephone companies
and their negotiated global tariff structures.

 There is a second dimension to the governance issue, one over which
civil society organizations hold some sway. The other issue of
governance has to do with the internal models of governance within
ICANN and the ITU themselves. At the simplest level, ICANN is a U.S.
based not-for-profit organization with a multi-stakeholder governance
model, and with shortcomings with respect to the extent and equity of
stakeholder participation. The ITU has a international member state
governance model, with virtual exclusion of other Internet
stakeholder constituencies except through their influence on the
positions of member states.
MLL <<<<<<<<<<ITU has tried to open up to civil
society. The IGF is an example, as well as is the attempt to
facilitate the participation by civil society in the WCIT. But many
think these are more "cosmetic" that substantial>>>>>>>>>

I see several challenges here, and several possible scenarios, with
risky outcomes. As far as ICANN is concerned it can strengthen its
multi-stakeholder governance model with increased and better more
representative participation of civil society (NPO/NGO) members and
from regions of the world (e.g. Africa). It also has to worry about
&#147;better more representative participation&#148; by other stakeholder
constituencies. But, and this is a big &#147;but&#148;, at the global
level it
is still just a U.S. based not-for-proft organization. It does not
exist as a result of international agreements and as a result remains
vulnerable.

MLL <<<<<<<<<<<<Actually, according to the Affirmation of Commitment (AoC)
signed with the US DoC and ICANN,   ICANN is a  not strictly speaking an
NGO. It is a “not-for-profit corporation” and “a private sector led
organization”, which  makes a big difference.  In effect, the first
paragraph of the AoC states as follow:  “This document constitutes an
Affirmation of Commitments (Affirmation) by the United States Department
of Commerce ("DOC") and the Internet Corporation for Assigned Names and
Numbers ("ICANN"), a not-for-profit corporation. In recognition of the
conclusion of the Joint Project Agreement and to institutionalize and
memorialize the technical coordination of the Internet's domain name and
addressing system (DNS)1, globally by a private sector led organization,
the parties agree as follows:”.
If you wish to read the whole contract (not a long one…) the link  is 
<http://www.icann.org/en/about/agreements/aoc>,

On the other hand, I don´t feel  that ICANN has not a special or
particular interest in representing the interest of civil society more
than others. Rather, it seems to me that with time, ICANN has understood
that civil society, as much as other groups/interested parties such as IP
layers, registrars, individual end-users, etc, should have a voice and a
role to play within ICANN.  Which is not exactly the same. Now another
problem comes from internal tension within ICANN about the legitimacy of
who best represents the voice of civil society. Several groups and people
within ICANN feel that  they  “represent” the voice of civil society. If
you wish you can listen to the recording of our NPOC session in Baku
during the IGF, specifically  the intervention of Bill Drake and how he
very interestingly described how NCUC /NCSG was born, how ICANN management
originally resisted having civil society being represented.   By listening
to this very enlightening presentation( in the sense that it provides good
information about what you mention), you will understand quickly what I am
talking about>>>>>>>>>>>>>>>>


The way forward here is not at all clear. It would appear that a
desirable multi-stakeholder model of ICANN governance cannot, in and
of itself, address the  fundamental problem of the absence of a
structure of  national agreements within which nation states sanction
the work of ICANN.

MLL <<<<<< ICANN is California based and is a private organization that is
bound by the terms of the  AoC signed with the US Department of Commerce.
It is California based therefore submitted to Californian law. You are
very well aware that they are many commercial, legal  and strategical
interests at the heart of the management of the DNS (one of them being
security and stability).  Some say that controlling the DNS is controlling
the heart of Internet…. As far as I understand,  European countries have
been fighting for a longtime with ICANN questioning this  North American
“mainmise” over the DNS and that the DNS should be run by a more truly y
interesting. There has been different pahses. One of them is called the
DNS war that took place between 1994-1998. There is an very good
publication on the Introduction to Internet governance that has been
published by  the Diplo foundation. You might be familiar with it. If not
the link to read it online is   < http://www.diplomacy.edu/IGBook>. In it
I find that  there is a  good and brief description of the history of
internet governance,  ICANN´s role and the different phases it went
through.>>>>>>>>>>>>>>>>>>>>>>>>

MLL <<<<<<<<<<<<<<<On the other hand, there is an attempt by current
management to “internationalize” even more ICANN. Nevertheless, I have
always wondered what it really means to “internationalize” an
organization….in this case, is recruiting non-US staff and opening
regional offices  enough? I would think it is a good start but certainly
not enough….and if there is, as some might consider (not saying it is my
case!),   a “vice de forme” from the very beginning  since at the end of
the day ICANN is a US-based organization with all the technical, legal and
other implications it has…..To me the only way to introduce some sort of
counterbalance, is for citizens, NGOs, end-users, etc.   to  use the
wonderful   bottom down-up decision-making mechanism ICANN has, to its
fullest and take the opportunity to provide valuable inputs from all over
the world.  Also,  the fact that ICANN is  so open to accept members from
anywhere is a good opportunity and a unique one, from anyone who is
interested,  to plant his or her  seeds and have a share at some point in
the decisions taken. The fact that within ICANN the decision-making
process is really decentralized and that it uses is a multi-stakeholder
model , in my views, provides a wonderful opportunity for all of us to
counteract or compensate its status of a nationally created corporation.
Whatever measure that ICANN will take to become more international, will
not make go away the fact that  it is US-based institution.But, in my
opinion, the fact that it is US based is not THE problem. If it was
European-based, it would be the other way round….As you mention the
trouble comes from the fact that it has been created by one and only
government and this is what can and does (according to some) undermine its
legitimacy as a truly international institution. If we adopt a pragmatic
focus, the only solution left, would be to accept reality and to make the
best out of the existing model as I just said in the above paragraph>>>>>


The above issue of ICANN and the nation state is further complicated
by two considerations. The first is if ICANN moved toward a
multi-party nation state component as part of an expanded
multi-stakeholder model, what is to prevent the current divisions and
struggles between countries within the ITU from simply migrating to
ICANN.
MLL <<<<<<For the reasons I mentioned previously I do not see this as a
possible scenario.>>>>>>>

The second is less obvious. The current structure of the ITU has been
seen at not conducive to meaningful participation by civil society
organizations. In response those self-same civil society
organizations are pressing ITU to move closer to a multi-stakeholder
participatory model, even if still a long way from a
multi-stakeholder governance model. This is a rational response on
the part of civil society organizations. First, ITU has national
government membership. That offers a venue in which civil society can
to some extent dialogue with nation states. It also hedges civil
society bets with regard to what will constitute the respective
policy domains of ICANN and the ITU.

Here is another concern. Is there likelihood that as ITU makes
incremental concessions to open up a more multi-stakeholder
participatory model, this will be used against ICANN? Is there the
risk of an argument that says the ITU, as an international agency
with country membership and a growing multi-stakeholder participatory
model, is making ICANN and its multi-stakeholder governance model
increasingly redundant? Could this be used to challenge the
justification for preserving ICANN&#146;s mandate? Is there a risk that
the ITU country membership base will offer a more promising avenue
for civil society to press its interests?

MLL <<<<<<<<<<<<<< ITU is a UN agency and ICANN a not-for-profit
organization from the  private sector . Although you are absolutely right,
there has been a lot of tension for many years and much has been written
especially in the light of the December WCIT, about how ITU seeks to
supplant ICANN. It seems that lately  they have decided to make clear that
both  mandates are different but complementary.  Over the last months,
since the new ICANN CEO has taken over, there has been a willingness to
approach ITU and tone down the tension. If you check the archives of ICANN
you will see that there has been some  MOU  signed in the past. Together
with other ICANN´s Board member,  Mr. Chehadé actually attended the Baku 
IGF. Over the last months, because of the IGF and the December WCIT in
Dubai and the numerous rumors  and articles written  about ITU wanting to
take over ICANN´s mandate,   the Secretary General of the ITU, Mr. Touré
ended up  reiterating several times and in different instances, that ITU´s
mandate is NOT related to the management of the DNS (even if on previous
occasions   he had made others declarations, contradicting himself on this
particular issues). Mr. Chehadé and Steve Croker  were both invited  by
Mr. Toure to participate to the opening ceremony  at the WCIT
<http://www.icann.org/en/news/announcements/announcement-28nov12-en.htm>
Also, it seems to me (just an opinion not fact-based! ) that the fact that
ITU is being pushed to adopt a multistakeholder model (and I am very
pessimistic about it..after all it is a UN agency….) and eventually
succeeds in doing it, is by no means a threat to ICANN,  bearing in mind
1/ that their mandates are quite different although they both belong to
the Internet ecosystem and 2/ that the nature of both organization is also
different as I mentioned previously.  I would rather perceived a move of
ITU towards a multistakeholder model as a recognition of ICANN´s work. A
recognition  of  how this corporation has been visionary and had the
strength and will as an entity, to develop and implement such a model
internally with all the good and bad consequences it brings with it. I
would see it a real recognition for ICANN management and staff.>>>>>>>>>


It is my view that wherever things are headed, there are two important
items on the &#147;hot button&#148; agenda. One is the scope for serious
continuous, possibly very open and transparent, talks between ICANN
and the ITU about areas of mutual interest and areas of
complementarity. The other, and more important, is a deeper
understanding of, and a refined strategy for, what ICANN embraces as
a strengthened multi-stakeholder model.

In a real sense, just as the global virtual spaces of the Internet
move society into uncharted territory, building a robust and
sustainable global multi-stakeholder model moves ICANN into exciting,
if equally uncharted, global territory.

Do I have misplaced worries here? I would appreciate your views and
insights? Are there other areas where I should more profitably worry?
I already have on my plate looking at approaches to broader and deeper
constituency presence in an ICANN multi-stakeholder governance model.

MLL <<<<<<<<<<<<<<Well, this are just some thoughts, I hope they
help…..>>>>>>

Sam Lanfranco