RE: [soac-mapo] Exchange of letters between GAC and ICANN re: morality issues

[Konstantinos Komaitis <k.komaitis@xxxxxxxxxxxx>]

But here my problem: if CWGs are seen as providing all this work and have their 
recommendations treated by ICANN the way these recommendations have, this 
provides a huge disincentive for people to participate in such CWGs. I 
understand that the role of CWG is not to create policy, but surely the 
conclusions of such working groups should be acknowledged and deliberated by 
ICANN and its staff. ICANN needs to promote the multi-stakeholder environment - 
not just on paper - but truly seek to find ways to both engage and appreciate 
the work of its CWGs. I personally feel, for example, that the work of Rec. 6 
CWG has not been appreciated either by GAC or by ICANN.

KK

Dr. Konstantinos Komaitis,

Law Lecturer,
Director of Postgraduate Instructional Courses
Director of LLM Information Technology and Telecommunications Law
University of Strathclyde,
The Law School,
Graham Hills building,
50 George Street, Glasgow G1 1BA
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: www.komaitis.org

From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Jon Nevett
Sent: Monday, November 29, 2010 4:56 AM
To: soac-mapo
Subject: Re: [soac-mapo] Exchange of letters between GAC and ICANN re: morality 
issues

I support the model of cross-community discussion groups, such as this CWG.  In 
certain circumstances, they are a very good idea.  I think that it worked very 
well in this case.

Unfortunately, some folks have been characterizing this group as something that 
it is not.  It is not a policy-making group and our report was not a 
pronouncement with some sort of imprimatur of the will of ICANN community.  It 
should be viewed for what it is/was -- a group of interested volunteers getting 
together to discuss potential solutions to an issue based on the request of 
some of the leaders of various ICANN supporting organizations/advisory 
committees.  We were successful in offering up some good suggestions and 
proposals, but the work has never been ratified by the policy-making body and 
should not be viewed as bottom-up policy-making.  Therefore, if the ICANN Board 
disagrees with a recommendation of this group with a clear rationale, I don't 
view it as an affront to the bottom-up policy making model as others have been 
articulating.

My concern is that if folks oversell the nature of the group and try to deem 
this kind of a discussion group as one with a policy-making function, then the 
those with the actual policy-making responsibility under ICANN's Bylaws might 
choose not to support groups like the CWG for fear that the work will be viewed 
as policy-making without the due process protections built into the Bylaws.  In 
order to foster future discussion groups like the CWG, I suggest that we not 
suggest that they are something that they are not.

Thanks.

Jon


On Nov 28, 2010, at 5:31 PM, Milton L Mueller wrote:


Thanks, Frank.
I do understand the point you are making. Problem is, it's incorrect. The CWG 
was officially co-convened by the Chair of GAC along with the chairs of ALAC 
and GNSO, and there was active representation of several GAC members in it. 
Moreover, the charter of this group was approved by the GAC chair and passed by 
the full GAC for its approval. Therefore while you may be right to say that it 
is still unclear whether GAC as a body would fully endorse the results of the 
report and its recommendations, it is plainly not correct to say that "the GAC" 
did not participate in it. It did.

Beyond that, on a more human level, I wonder whether you have thought through 
the longer term implications of what you seem to be saying/doing. Many people, 
not just myself, would take this kind of distancing as further evidence of the 
dysfunctionality of current arrangements for multistakeholder cooperation in 
ICANN. As long as representatives of national governments hold themselves apart 
from the process and (through strategic behavior) seek a special, privileged 
influence over policy outcomes, then there will be major challenges to the 
legitimacy of both the GAC and the policy outputs that come out of the board on 
any issue. That lack of good faith process can only hold back the internet.

Certainly, if governments want to make these decisions on their own, on their 
own terms, they can do it. But then they'd have to be big boys and girls and 
negotiate and pass a binding international treaty. And that would require you 
to follow constitutional constraints, due process requirements and ratification 
processes of the member states. If you're not willing to do that, then perhaps 
you need to take these processes a bit more seriously. You can't have it both 
ways.

Cheers,
--MM

(p.s., if you do want to go the treaty route, I look forward to discussing the 
First Amendment implications with the U.S. representatives.)


From: Frank March [mailto:Frank.March@xxxxxxxxxxx]
Sent: Sunday, November 28, 2010 3:51 PM
To: Milton L Mueller; Antony Van Couvering; soac-mapo
Cc: Heather.Dryden@xxxxxxxx<mailto:Heather.Dryden@xxxxxxxx>
Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN re: morality 
issues

Without wishing to seem pedantic, the GAC did not participate in the Rec6WG. As 
I was at pains to point out on a number of occasions, some GAC members 
including myself were part of the group but not able to speak on behalf of the 
GAC.  I would like to think that the overall direction of the report would have 
strong GAC support but this has not been tested.

Because of the timing issues of getting the report ready in time for the 
Council retreat, it was never proposed that the report be taken formally to the 
GAC for discussion or endorsement.  My view is that it it is the Board's 
response to the report and the outcomes therefrom that would engage the GAC, 
not the report itself.

Given that the issues raised are still 'live' and the work is carrying on it 
would certainly be possible to have a discussion in Cartagena.  I have a 
feeling however that endorsement of the report from the GAC would be difficult 
to achieve.  It might well be considered by some members not to be an 
appropriate action for the GAC to take.

Best wishes, Frank

----
Frank March
Senior Specialist Advisor
Communications and IT Policy
Ministry of Economic Development
33 Bowen Street, PO Box 1473
WELLINGTON, New Zealand
Mobile: (+64) 021 494165


________________________________
From: owner-soac-mapo@xxxxxxxxx<mailto:owner-soac-mapo@xxxxxxxxx> 
[mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of Milton L Mueller
Sent: Monday, 29 November 2010 4:48 a.m.
To: Antony Van Couvering; soac-mapo
Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN re: morality 
issues
The disturbing thing about this exchange of letters is that both sides seem to 
treat this working group - which GAC participated in - as if it did not 
contribute "thoughtful proposals" to resolve the stated concerns.