[soac-mapo] Ideology vs. practicality in MAPO/MOPO

[Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>]

This note is meant to provide what I think is the background of this issue, and 
to point the way forward as I see it. 

Both ICANN and the GAC have ideals (or ideologies), that conflict with the 
realities.   Everything is fine as long as the realities are allowed to exist 
in a parallel universe from the ideologies, and as long as the cognitive 
dissonance created by the meeting of the two is infrequent or hidden. 

In a previous note, I mentioned that the issue with MAPO for the US Government 
and other governments is that "morality and public order" is in international 
treaties an *exception* process, not an affirmative global definition.

So why not, you may ask, use the obvious solution, which is to use exactly that 
exceptions process and build up a system whereby national governments can "opt 
out" of TLDs they don't like?  I think we will get there, but we have to deal 
with the problem that this PRACTICAL solution isn't easy to square with the 
IDEOLOGICAL constraints that bind both ICANN and government players. 

ICANN's ideology is that there is "one world, one Internet, everyone 
connected."   While that's Rod Beckstrom's phrase, it's a fair encapsulation of 
an ideal that motivates a lot of people in ICANN, including myself.   It's also 
readily apparent that there are many exceptions to this ideal, which are never 
mentioned -- they are the crazy cousins kept in the attic that nobody talks 
about.  One example that should be useful for this discussion is the widespread 
blocking of second-level domain names (and websites) by the Chinese government; 
another would be the creation of pseudo-TLDs that exist with a tenuous 
connection to the global root, or with no connection at all.  

So ICANN's ideology does not allow opt-out from global standards -- that way 
lies chaos, this line of thinking goes -- even though there are already plenty 
of exceptions and they Internet hasn't collapsed yet.   

The US Government has a few ideal/ideologies that it regularly flouts, although 
the sophistry involved in explaining why is a great deal more evolved and 
sophisticated than anything ICANN has come up with.  You will note (as an 
example) that the US Gov't representative isn't taking a stand to defend the 
first amendment right to freedom of speech.  In fairness, just as there are no 
global standards of morality, neither does the US constitution cover non-US 
citizens outside the US.  But still...

In reality, what the US government and many other governments want is a 
choke-point to make sure nothing bad happens.  They don't know what that bad 
thing might be (think Rumsfeld's "unknown unknowns"), but they do know that a 
bad decision could have major implications for global communications policy and 
diplomacy generally.  Right now, thanks to the Affirmation of Commitments, the 
US has placated other governments who want to have a say in DNS matters by 
changing its status from "we decide" to "first among equals" -- or so it seems 
on paper.  But if the actions of ICANN lead to new TLDs that are offensive to 
other countries, those countries are going to once again challenge the hegemony 
of the US and its allies in DNS matters.  

So despite the "nice ideal" of free speech, what governments really want is a 
way to provide adult -- i.e., government --  supervision to ICANN.  But they 
can't say that without really causing a ruckus within ICANN.   That's why the 
GAC refuses to come up with a plan of their own. 

The opt-out solution probably provides a PRACTICAL solution for both ICANN and 
governments.  It does not, however, provide a PRINCIPLED approach that either 
party could sign on to.  (The problem with the "distinguished international 
jurist" approach embodied in the current MOPO proposal is that these lawyers 
might come up with something that works in principle but is a disaster from a 
practical standpoint.  From the governments' point of view, the risk is too 
great.)

To me, the way forward is clear.  Suzanne Sene of the US Gov't even mentioned 
it, as an aside.  It was an aside because the US government doesn't want to be 
seen as promoting a particular solution.  Nonetheless, Suzanne is too good at 
her job to start talking nonsense: this was an unofficial suggestion. 

"So I did look at the geographic names approach, where there is a
proposal for a geographic names panel that will review all the strings
to see if they fall under that category, and started to try to think
out loud, I don't know if we might want to pursue this.  You know,
could you develop an approach for string review that might minimize
the potential that the new gTLD process would be overwhelmed with
possibly intractable disputes over sensitive strings that fall into
certain categories."

>From where I sit, this is a good starting point.  A new panel, sufficiently 
>large to include diverse membership, would restore a political element to the 
>decision that would allow governments to exert pressure to prevent a "bad" 
>decision, but would shield them from being blamed from interfering.   
>Likewise, ICANN can claim that the "community" made the decision.  And if a 
>few governments still didn't like a TLD, well then, they could block it, just 
>as China blocks second-level domains today. 

I think that something like this is the only way to bring the ideals and the 
practicalities together under one roof.  Is it ideal?  Certainly not.  Is it 
practical?  Eminently.

Antony