random thoughts

Last week, I spoke before a High Level Meeting at the UN General Assembly; In the General Assembly room, standing at the podium in front of the green marble podium and the seal of the United Nations.  I was in awe of the setting and the opportunity. I am still amazed and honored that I was given this opportunity. The text of what I said.

And a video.

ICANN's Articles of Incorporation include:

promoting the global public interest

What is the global public interest - or public interest (PI) for short?  Often people ask this, and often they ask it with a sneer, comfortable that no one can define the public interest in a way that everyone will accept.  They believe that their question eliminates any need to discuss the issue further, and thus any requirement to serve these interests. 

They miss the point.

A working definition I use is:

That which, all things considered to the extent possible, is most beneficial for the public; as individuals, as members of groups and in the aggregate. A fixed enumeration of the public interests is difficult because it is an aggregate emergent property that changes over time and is subject to different perspectives and cultures.  There are some anchors like the globally defined human rights instruments that stem from the Universal Declaration of Human Rights and other international conventions and agreements on human rights. But more is required. While human rights provide the principles that global public interest must be consistent with, they do not take the full specificity, diversity and balance of interests into account. Practically speaking, the public interest needs to be defined within a framework that recognizes its complexity and dependence on processes that are adhered to, but which can evolve as necessary and as agreed to by the community. ICANN constructs, such as the formal bottom-up Policy Development Processes (PDP) and the Affirmation of Commitment (AOC) multistakeholder accountability reviews - especially the Accountability and Transparency Review (ATRT), create such a framework for defining the public interest and for reviewing accountability to the public interest respectively.  The primary thing missing from this construct are ways to redress faults when the mark is missed. ATRT reports have  recommended work be done on redress mechanisms for ICANN.  This is also one of goals of the accountability work being done currently to support the IANA Stewardship transition process.

The first principle of the New gTLD program people are currently suffering through is:

New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way.

Any one who has even the slightest awareness of the realities of the new gTLD program knows that is has been anything but predictable, let alone orderly and timely - but those are subjects for another day.

In terms of ICANN processes, the various policy development processes (PDP) define the the manner in which decisions will be made.  Anyone who is paying even the slightest attention to ICANN these days know that the PDP no longer holds sway in an environment where ad-hoc processes,  invented by the Board and the Staff, sometime known as the Adhoceracy, replace the PDP anytime it is convenient.  And while sometimes, there is a need that an existing process does not meet, when that happens they do not work with the members of the community to craft a new, albeit interim, process.  Instead they just invent something, sometimes even something clever like the current Accountability process, and then try to bluster their way though any opposition, only stopping when the people rise up and embarrass them with letters of non support.  The point is that the process of ICANN has become unpredictable, something that no one could possibly trust.

While some people have an emotional makeup that thrives on unpredictability, the adventure of surviving chaos and finding way to create advantage, for the most part, it is human nature to need predictability in order to trust.  Most people wake up each day either trusting what the day will be like or dreading the unknowns they will have to face.  In examples like the Scottish vote for independence, despite centuries of yearning for freedom, in the end, most analyses show that they voted for the predictability of the UK.  No matter how strong other impulses might be,  populations trust predictability. Most people choose predictability. At ICANN the only predictable is unpredictability - one never knows what is going to happen next.  One never knows what the next adventure in adhocery will be.

The ICANN community is currently enduring this period of helter skelter,  and though all good intentioned haste and disorder, it leaves the community uncertain as to what each new day will bring.  Trust on the other hand, means that there is something you can count on.  It means that one can generally predict what the course of action following an event will be like. It is not only businesses that need predictability, normal folks thrive on it too.

When you get right down to it, what is difficult to understand is not the lack of trust, but rather it is all the hand wringing we see from our corporate leaders about trust. 

Rumors are flying that ICANN wants to move away from the bottom-up meme that has become its badge of legitimacy.  This is not a good thing.

I have been researching the definition and roots of the term bottom-up for a while now, and it has a mixed background of definition and usage ranging from financial analysis and protein instrumentation to computer science.  IETF, a group whose decision making practices evolved from engineering and research practice, uses it to refer to the rough consensus process. In On consensus and humming in the IETF

we strive to make our decisions by the consent of all participants, though allowing for some dissent (rough consensus), and to have the actual products of engineering (running code) trump theoretical designs. [RFC7282]

I recommend RFC7282 to anyone interested in the meaning of rough consensus as it includes a very fine discussion of both the practice and of things that can be misunderstood about the process. There are three important elements in the IETF definition:

consent of all participants is the goal

some dissent on issues can occur

fact and experience based decision making

ICANN also has its practice of bottom-up decision making though it is not described anywhere with the elegance of RFC7282. It is reflected in gory detail, however, in the policy development practices of groups like the GNSO. A review of these procedures will show that they are:

consent of all participants is the goal

some dissent on issues can occur

fact and experience based decision making

For many years now ICANN has been referring to its private sector led methods as the multistakeholder bottom-up process. This has referred to the structures, both formal and in practice, that define the trust model for ICANN activities between the Stakeholder community and ICANN as a corporate entity composed of Board and Staff. 

The threat referred to in the title of this blog comes from a misunderstanding of bottom-up. ICANN is currently engaged in a tussle between the community and the corporation. The root of this tussle is  a confounding of:

consent of all participants is the goal

with

fact and experience based decision making

The fact that all participants must consent to decisions, does not mean that all facts and experience, or ideas, must originate among the participants.  In the IETF  a protocol can come from anywhere, as an idea from the leadership, a university paper, or a corporate r&d development prototype. But while it may not matter where the idea for something comes from, it matters whether all participants come to a rough consensus on the protocol.  Beyond that, once the participants accept a protocol, it comes under their change control.  They can then twist it, fix it and render it completely unrecognizable according to the dictates of rough consensus.

Similarly, in ICANN policy development process (PDP) the idea for a policy or practice can originate anywhere.  Most PDPs start with a staff analysis of the issues.  Most practices start with a staff rough proposal. Once presented though, what the community does with these raw materials is under the control of the various ICANN consensus processes.  Once they complete their work they send it on to the corporation, i.e the Board and staff, as a recommendation.

But the process does not end there.  It continues. If the Board and staff have difficulty with the recommendation they must be sent back to the community for more work, they can't just change it on it own, though they can offer suggestions. The process of ICANN consensus involves a cycle where any ICANN outcome must first achieve balance of the community and corporate concerns.

A couple of rules in this process emerge:

No matter where a suggestion, experience or fact comes from, it is the participants who must come to consensus on the outcome.

Once a consensus is reached the corporation must review and it may even make further recommendations to improve the outcome.

Whenever an outcome is changed by the corporation, it must go back to the community.

This cycle of ICANN community and corporate, the ICANN consensus, continues until the outcome is stable. When the ICANN system works, it reaches a homeostasis.  Those are the good times at ICANN when everyone is in harmony with trust abounding.

With the sensitive and pressing nature of the work being done on new gTLDS, IANA Stewardship, ICANN accountability, and the pressures of the global Internet environment, the ICANN cycle of community and corporation has started wobbling.  As any cyclist knows, once a wheel starts to wobble, trust in the bike begins to ebb. Trust only returns once the wheel is trued.

Recently the ICANN corporation has been worrying about the trust of the community. As is often the case in social dynamics, this has been understood in emotional terms.  Sometimes when people are emotional,  they start to look for radical solutions.  For example some might decide that the bottom-up processes no longer work, are not obligatory and can be circumvented.  Others decide that the corporation is no longer fit for purpose.

And the wheel starts to wobble even more.

And the emotional content increases.

Perhaps what is needed is to stop, look at the wheel and take the time to true it.  At ICANN this means allowing that the community and corporation to cooperate in the upcoming accountability process. We need to review our structures and strengthen them so that the ICANN corporation can fulfill its commitments, so that the ICANN Community can again believe that ICANN is fit for purpose and so that we can convince the global Internet environment that ICANN deserves its role in the governance of critical Internet resources.

Eight  (8) months after the Affirmation of Commitments (AOC) Accountability and Transparency Review Team (ATRT2) report on ICANN was released, and five (5) months after the NTIA offered to transition its stewardship responsibilities for key Internet domain name functions over to a yet to be named multistakeholder entity, ICANN has produced a blueprint for building the plan for improving ICANN Accountability and Governance.

Before getting critical about elements of the plan, I must say that given everything, including the mix of comments, it seems to be a workable plan that took a great number of considerations into account.  But in saying that I know I am being optimistic and using the best possible interpretation.

  The organizational plan creates three sub-groups:

Cross Community Group (CCG)  an aggregate of all of the ICANN stakeholders who want to take part in the process. This group is responsible for:

                * Identifying issues for discussion or improvement;                 * Appointing 10 participants to the Coordination Group                 * Providing ongoing community input to the                    Coordination Group

Public Experts Group (PEG): a Nominating Committee like body composed of four experts in expertise whose job it is to pick 7 experts for the Coordination Group.

Accountability and Governance Coordination Group (AGCG):  composed of those appointed by the CCG and PEG as well as one from staff, one expert in ATRT folklore and one liaison from the IANA Stewardship Transition coordination Group and one from the ICANN Board.  This is the group of 21 that will make the recommendations to the Board in consultation with the Cross Community group.

As with all recommendations to the Board, there will be open community comment periods before any decisions are made.

While I think this is a structure and plan we can work with, I have concerns and there are issues of concern in the community.  But as a sometime system architect, I think they did a decent job of designing a structure for getting the work done. While it has some complexity, it does not have more than is needed to deal with the issues that need to faced.

The Issues with the plan

A staff member as a full member of the coordination group? Outrageous! Or is it?

Many are outraged at this possibility. I am not so outraged, but I realize I am being optimistic in my outlook.

To some, staff should never, never ever, be involved in making policy recommendations. Well typified by one board member I once heard say something like: In my last job if I ever caught a staff member making policy, they were fired.  People argue that staff are paid to serve and they have other interests so can't be trusted.  Some argue that they can't be trusted to serve the public interest because they will be serving the corporate interest, or else.

I tend to argue that they are stakeholders too. The working definition I use for multistakeholderism refers to all stakeholders:

Multistakeholderism is the study and practice of forms of participatory democracy that allow for all those who have a stake and who have the inclination, to participate on equal footing in the deliberation of issues and the recommendation of solutions. While final decisions and implementation may be assigned to a single stakeholder group, these decision makers are always accountable to all of the stakeholders for their decisions and the implementations.

Certainly they are stakeholders with different roles and responsibilities, and with behavioral constraints, but stakeholders nonetheless.  They are users of the same Internet resources and like the workers in any enterprise are subject to the conditions of the organization for their very livelihood.  They have a stake in what happens.  I see including staff in a group like this, very much like the inclusion we have begun to see in many countries' industries, of workers on boards and on special committees. As volunteers we sometime forget that the staff of ICANN are also workers for ICANN and care about its well-being, just like the rest of us.

In fact one of the pending work items from the ATRT2 work, which I assume will be done under this Accountability and Governance improvement plan, is a review of the ICANN whistle-blower policy and the protections given to employees that make problems known.  After all, without transparency there is no accountability in governance. Who better than a staff member to represent such interests?

As for Staff getting paid, Board members are also paid, and Board members can set their own salaries and they can give themselves raises.  Board members are the final deciders in all ICANN processes, yet their finances are affected by the decisions they make.  In comparison, allowing one staff member a seat at the table does not seem so extreme. 

As for having other interests, we have recognized at ICANN that having other driving interests is in the nature of multistakeholder decision making. Some of our interests include maximizing profit for our company.  Some of our interests include advocacy for a point of view. Some us participate to fight for human rights. Some of our interests are status in our chosen field or career progress. Some of us want to travel the world and some just want to be needed and feel like they are still useful.  Everyone at ICANN has multiple interests, and that is why we require Statements of Interest (SOI) that make these interests available for all to inspect.  Well, the fact that a staff member is a staff member won't be a secret, it will be a known interest - and that is all we require from the rest of us.

But I realize I am, perhaps, being utopian in the way I look at the role of this staff member.  I am looking at this as a situation where a representative of workers' interests will be included in the coordination group.  I have a fear, however, that we may get a Senior Special Poo Bah, or some-such, who is primarily interested in executive row and their own position in the hierarchy, and not in the workers' well being.  I can only hope my fears are unworthy and my optimism prevails; I can think of staff who could both provide the required knowledge on ICANN's accountability programs and at the same time look out for the well being of their fellow staff members. In looking at this sort of situation, I prefer to support the optimistic interpretation, so I hope they pick the right sort of person. Time will tell. It might happen.

The Board is going to decide on the charters for the groups?  What about bottom-up charter making?

Again, I am being optimistic.  ICANN is learning how to work together in  creating cross-community WG charters. The drafting team that just produced the Cross-community charter for the IANA Stewardship Transition Working Group (CWG) has done a very good job in creating a balanced cross-community charter.

(I am on that drafting team, but I would admit if I thought we were producing junk). 

But even in that group, we did not manage to bring all of the Supporting Organizations (SO) and Advisory Committees (AC) into the process.  Perhaps this effort does need to be chartered by the Board, as the SO and AC themselves are. I am assuming, however, that as a chartering organization, the Board knows better than to produce such a charter without consulting the groups for whom it is a charter, and with the community at large, before finalizing the charter.  If the Board believed it could just produce a charter without having it vetted by the community, they would not have been paying attention.  But I am sure they have been paying attention, so I interpret the fact that the Board is going to develop the charters to mean they are going to do the right thing as the chartering organization for these groups, and that they will be working with the community.  There is a lot of experience to draw on on when creating cross-community groups. This Board, will know how to include the community in the process and will know how to build on the community's experience. At least that is what I hope happens.

Experts to pick the experts? The community should pick them! And they get to be full members of the group?

When a draft version of the plan was made available, the Board took responsibility for choosing the experts on the coordination group.  This was objectionable because it gave the Board 7 voices on a panel of 21. Having the ability to choose one third of the recommendation group was an excessive control of  process, especially one in which they were both subject and final decider.

The released plan creates the PEG, a group of experts who would pick the experts.  While this improved things somewhat, for some people this is not good enough; they demand that the bottom-up processes of ICANN pick these experts.  Some also question whether it is appropriate for experts to have a voice in deciding on recommendations to be made.  While I have sympathy for this argument a few things lead me to a different conclusion.

Whether it is the /1Net picking its steering committee, or the GNSO's Non Contracted Parties House selecting a Board member, we have not shown that we can pick people easily.  Only in Nomcom structures have we shown any ability to come to conclusions on multistakeholder picks in a bottom-up, predictable, and reliable way.  And that takes nine months or more. 

The blueprint for improving accountability and governance, includes a small nomcom-like group of 4 experts on expertise.  I think this a fine solution. Others ask why community members are not responsible for picking the outside experts.  Perhaps we could set up a Nomcom to do this, or even ask the current Nomcom to do it. But that might not meet a necessary condition for these experts - that they be outside experts.  The experts on the coordination group (AGCG) need to represent a variety of expertise in issues that are larger than the ICANN bubble and that are meant to represent the interests of the global multistakeholder community.  Perhaps, had /1net reached a point of stability and maturity in the last year, it might have been called on to help in this process.  But none of us who have been on that list for the last year believe it is ready for that (though the recent rebirth of the list does show some reason to hope for the future).

Creating a small group of experts on expertise, seems like a good compromise to the need to get experts on the interests of the global community without handing the Board control over the choices or taking a year to do it. Of course in picking the members of the PEG, the Board will be subject to vox populi, and their picks will be judged by the community and should they fail the giggle test, will be the subject of noisy public outrage and/or ridicule.  I can only hope that the Board makes wise decisions in picking this group.

I do, however, have some concern with the set of skills the plan lists as needed in the experts on the coordination group.  The current list includes the following:

 Internet Technical Operations

International Organizational Reviews

Global Accountability Tools and Metrics

Jurisprudence / Accountability Mechanisms

Internet Consumer Protection (including privacy, human rights and property rights concerns

Economics (Marketplace and Competition)

Global Ethics Frameworks

Operational, Finance and Process

Board Governance

Transparency

Risk Management

Governmental Engagement and Relations

Multistakeholder Governance

A pretty good list, but lacking in my view.  For example, it does not include any expertise on community dynamics or on achieving effective diversity. I am also dismayed that human rights has been subordinated as a sub category of consumer rights.  These are two different, albeit related areas of expertise.  Finally, they have not required that the experts have some knowledge of how ICANN works.  We have seen what happens in advisory groups when they don't understand ICANN at all.  Some of them came up with solutions that couldn't be implemented due to ICANN multistakeholder organizational structure. Hopefully the PEG, among its experts and expertise, will include some ICANN knowledge among the external experts.

I hope the PEG, as specialists in expertise, will be able to review their task and augment the set of skills that they need to consider.  After all, they, not the Board or staff, will be the experts on experts.

And in conclusion, at least for the moment.

There is now a plan and it is time to figure out how this plan can be implemented in the best manner possible.  From my point of view, it could work out quite well, or it could end up a difficult and painful experience.  The manner in which it is implemented over the next weeks, between now and the LA meeting in October, will tell us a lot about the degree to which this plan will be implemented in an appropriately multistakeholder manner.

I have my fears.

Last week I was given an award.  Something I never expected until I received it.  Even though Fadi  told me a week before that it was scheduled to happen, a part of me never believes something is going to happen until it does because things change; that is just the way things go.

But it did happen and since then I have been thinking about it on and off.  Thinking about how nice it felt to be recognized by people I would never have expected it from. A novel sort of feeling that was impossible for my natural cynicism to repress.  It is a rather pleasant feeling.

And I started thinking about what it meant.  The first thoughts that blurted from my mouth after being directed to the lectern to say something, another event I had not expected, were short and contained a mixed metaphor.  Some people have thanked me for making an appropriate length speech and some have questioned why I did not say more. Only a few pointed at the mixed metaphor. I said:

It is very pretty.

I am really quite amazed. Truly quite amazed.

"Ethos," what does that mean? Character? Attitude?

I have certainly had a lot of that.

But "multistakeholder," I truly am devoted to that and I found ICANN to be one of the best crucibles for hammering it out.

So, thank you very much.

What did I mean? What is behind these few words?  I have since spent a few days thinking about what I said and this is what I come up with.

It is very pretty.

Indeed it is. The facets are cut in such a way as to let the light play.  It has found a space in a dinning room cabinet with other valued things where the light can hit it and the cat can't.

"Ethos," what does that mean?

On being told I had won an Ethos award I starting thinking about the word and what it meant, and what it had meant throughout the history of philosophy.  Yes, I remembered that it was one of the triad of Pathos, Logos and Ethos of Rhetoric.  And that its basic meaning was character and attitude as I had said in my brief remarks.

Aside: In my 'speech' I meant I had lots of attitude, not that I had lots of character and attitude. Seems pretentious to say I have lots of character, though I know I am often identified as a character, and characters do generally have lots of character. Oh, well.

I started with the Stanford Encyclopedia of Philosophy and the first reference I found was the use in pragmatism.  Seemed a good place to go to understand Ethos in a practical context such as ICANN.  What I found was satisfying and gave me a deeper working understanding:

The radical and unconventional character of Dewey's conception of democracy and his political philosophy generally derives from its boldness, which some readers find hard to stomach. The abstract character of conception of democracy is as far from a common and ‘realist’ view of democracy as the name of a set of specific political procedures and institutions as it is possible to find. Participation may not be a good, or appreciated as one, by every individual, such as those who are too shy or busy. Furthermore, it is a bold assumption to hope, as Dewey does, that complex industrial societies can be characterised by a high level of harmony among the interests of their members, to be secured through public discussion and communication. Of course, this very boldness is appealing to others, for whom the connection Dewey makes between an ethos of flexible openness and democratic self-government stands as an enduring critical challenge to a circumscribed democratic pessimism.

Yes, this seemed to explain a meaning of the word and a proper use quite well, a definition fit for purpose.  It has been a while since I read Dewey, but I have downloaded some free Dewey content to my Kindle to compensate. Over the course of the next months, I will continue to research the word Ethos to see what else I can learn about the word and the expectations of those who use it.

Multistakeholderism

I spoke of being dedicated to the multistakeholder model.  I am.  I write about it, and I work on it most days.   I am proud to associate with multistakeholderism (m17m for the spelling challenged) as a theory and as practice.  I even go so far as to think I can define it:

Multistakeholderism

The study and practice of forms of participatory democracy that allow for all those who have a stake and who have the inclination, to participate on equal footing in the deliberation of issues and the recommendation of solutions. While final decisions and implementation may be assigned to a single stakeholder group, these decision makers are always accountable to all of the stakeholders for their decisions and the implementations.

I believe in democracy and while I see representative democracy as necessary, I do not see it as sufficient for society's or individuals' needs.  While I have romanticized the idea of direct democracy at times in my life, I still don't see it as scaling very well. I also do not see most people as interested in getting involved in many of the nitty gritty policy decisions that society needs to make on a continuing basis.  The forms of participatory democracy, including a variety of multistakeholder architectures and models occupy a point between representation by bureaucrats picked by national leaders, some of whom were elected at some point somewhere, and the ideal of direct democracy.  All those who want to participate, those who bring their stake to table, should be able to participate in determining the path forward.

I believe that multistakeholderism is a form of participatory democracy that is absolutely necessary in today's inter-jurisdictional world and that inter-governmental decisions can measure their legitimacy in terms of the depth and breadth of the multistakeholder process that led to the decisions.  Incidentally, I also believe that forms of participatory democracy, such as the variety of multistakeholder models, are as important at the national level, but issues of citizenship modify the discussion and result in a different sort of citizen-stakeholder model.

In terms of the inter-jurisdictional issues I am involved in, whether Internet governance or Human Rights on the Internet and for threatened peoples such as the LGBTQI community (aka the global gay community) most everywhere, yes, I believe that full legitimacy demands full and open multistakeholder participation on an equal footing in making recommendations and decisions.  And I believe that those who are given the privilege of making 'treaties' should participate and should craft their agreements based on the results of the recommendations that emerge from those processes. In terms of inter-jurisdictional areas I am not involved in, I expect that something similar is the case.  Time, study and experience will tell the extent to which these considerations are generalizable.

People argue that multistakeholderism (m17m) should not be an end in itself. I disagree.  Yes, the issues at ICANN are indeed important in themselves, regardless of what methods are used to resolve them.  Solving those problems is the primary goal of the work in ICANN.  But developing new democratic methods is necessary in a world that cannot make just decisions.  The quest for Democracy, as an ideal and as practice, still has long way to go, and the work on multistakeholderism is work on Democracy, a goal that is most important in itself.  ICANN has declared itself a center for multistakeholder action, and that is a good thing, a necessary thing, a thing I am proud to be part of.

Hammering and the Crucible

Definitely a mixed metaphor.  One that sent me scurrying to the web to see if it could help me wiggle out of it. In the attempt, I read about crucible steel and read about the importance of hammering before something went into the crucible and hammering again after it came out of the crucible.  While it is true that one does not hammer in a crucible, things are made strong by the hammer and the crucible used together.

ICANN provides an excellent crucible where all stakeholders can come to work their concerns into the mixture. And then, after the application of heat (sometimes a lot of heat), these same stakeholders work to hammer out solutions from the consensus mix that is produced.  I find excellent parallels between the making of crucible steel, and the forging of multistakeholder solutions at ICANN.

-----

Then again, perhaps as one friend told me, I should drink champagne and dance on the beach in celebration  Well, while respecting the concerns of the GAC on .vin and & .wine,  I had lots of wonderful Prosecco and I did dance about my room - close enough. 

I really am tickled, pleased, and honored by this award.

Dialogue is a conversation between 2 parties.  In EuroDIG who are the two parties?  From my perception at this meeting it has been between the panelists up on the dais and the participants down on the floor.   Some of the new meeting measures that were introduced have moved it toward more of a conversation among all participants, this could evolve further.

Some of the points I picked up from the discussion,  these are but a few and I am but one participant:

The Internet is global and the periodic talk of a European Internet is counter productive at best.

Europe is committed to human rights but has diverse views on how to balance these rights and how to enforce them.

Multistakeholderism means all stakeholders have equal footing in discussions, though one of the stakeholders may take the lead in implementation and deployment of the decisions.

It is unclear whether democratic oversight of surveillance is possible.  Multistakeholder work is needed to deal with transnational issues, that balances the various aspects of security in the context of human rights.

The Internet is a paradise lost – while it is unclear that paradise ever existed, we want it back.  We should not accept limits on our on-line freedoms too easily.

Possible ways forward:

Continue working to expand the dialogue into a multilogue.

Continue the work on capacity building, especially for European political leaders

Pick a European policy goal and focus during the year between now and the 2015 EuroDIG to produce an input to both the IGF and the EU. E.g.:

NETmundial contributed toward the progressive view that the enhanced cooperation of all Stakeholders is necessary for Internet Public Policy.

CSTD (the UN Commission on Science and Technology for Development) contributed toward the regressive view that the States should be in control of Internet Public Policy.

I spent a good part of the last week trying to get some crumbs of information on what was happening at the CSTD meeting being held in Geneva.  What information I managed to get was through the kindness of those who tweeted the meeting (when they were not being abused by some governments and business representatives for doing so) and who sent updates to various lists and chats. This meeting was held in relative darkness, without audio-cast and without even the pretense of remote participation. While some stakeholders other than state government representatives were allowed in the room, and some stakeholders were occasionally given a diminished opportunity to speak, it was not a multistakeholder meeting.  It was a UN Intergovernmental meeting.  The only thing multistakeholder about the meeting was that they were sitting in judgement of the multistakeholder process of Internet governance and were trying to impose  states' viewpoint on who and what was permitted to make public policy with regard to the Internet: the choice is between the States, represented largely by Geneva bureaucrats or the world's people, whose interests were represented by the multistakeholder mix that attended Netmundial 2014. Some of these Geneva bureaucrats are lovely people and I count many as my friends in other venues, in multistakeholder venues.  But in Geneva in the relative darkness of the CSTD meeting, they were the judge and jury on the viability of the multistakeholder model for Internet governance. 

This was not appropriate.

One irony is that among the topics they discussed was the Working Group on Enhanced Cooperation (WGEC), a multistakeholder group assembled by the CSTD by direction of the UN General Assembly (UNGA). Setting up a multistakeholder working group had been progress for the CSTD. But many of the CSTD member states were unhappy and wanted to show that the model did not work and appeared to do their best to disrupt the processes of that multistakeholder working group, no matter how hard the chair of the group worked in vain to get them to cooperate.  As a member of the working group I heard the gleeful refrain: 'see the multistakeholder model doesn't work' from a few rejectionist state members and from their allies in the group. In the CSTD meeting, the states, including the rejectionist states among them, had a discussion about the fate of a multistakeholder group, in a venue that excluded the other stakeholders from equal participation. 

This was not appropriate.

They were also discussing the perennial issue, the issue assigned to the WGEC, on the meaning of Enhanced Cooperation?  Does it mean among all stakeholders?  Or are governments the only ones that may participate in Enhanced Cooperation.  As they have done since 2005, some of the member states insisted on a model of Enhanced Cooperation that rejects the principles of participatory democracy as expressed by multistakeholderism (m17m), and gave preference to the idea that it was all about governments. This despite words that they echoed  from the Tunis Agenda in 2005 about the participation of all stakeholders:

71. The process towards enhanced cooperation, to be started by the UN Secretary-General, involving all relevant organizations by the end of the first quarter of 2006, will involve all stakeholders in their respective roles

In terms of "all stakeholders in their respective roles,"  these governments unfortunately once again reaffirmed Tunis Agenda paragraphs 35 - 37, which inaccurately define the roles and responsibilities of actors in Internet governance from a state-centric point of view; a view where states and intergovernmental organizations control the Internet. In doing so the member states of the CSTD once again reaffirmed the government statement from 2003 that gives some states all the reason they need to put themselves, via some UN system organization, in control of the Internet.

This was not appropriate.

At NETmundial on the other hand, everyone had a equal opportunity to participate.  Stakeholders and stakeholder groups, beyond those even imagined at CSTD meetings, were included and treated on an equal footing.  Within this equal footing at the global level, the governmental actors and the non-governmental actors were treated equally.  The states that participated were able to go off and discuss things among themselves on an equal footing, as were the actors and stakeholder groups that made up the non-governmental side of the process.  And they came together at the end on an equal footing, in multistakeholder groups, to hammer out a rough consensus Multistakeholder Statement.

This was appropriate.

Some of us, myself included, are unhappy we did not get all we wanted in the outcome.  I think some of us, myself included, could have done a better job organizing and making sure we had written the words that could be used in the final statement. But we can learn how to function better in these multistakeholder environments. This does not diminish the achievement of NETmundial.

Some of us, myself included, are dismayed at the fact that some of the corporations used their wealth based power to sway the outcome document at the very end of the discussion, but that happens in the multilateral world as well, just less visibly and without any chance for other stakeholders to do anything to counter it.  

Aside to those non-governmental actors who disparage participatory democracy as expressed in multistakeholderism -  in the multilateral system the big corporations still have access, it is the rest of us, including academics, activists, civil society, internet technical community, and small businesses who are shut out.

NETmundial produced Enhanced Cooperation.  While not billed that way, it joins the IGF in terms of being a venue for Enhanced Cooperation on a global multistakeholder scale. And it was the first multistakeholder group to produce an outcome on Internet Public Policy on an equal footing. That is Enhanced Cooperation of the first order, which shows that productive Enhanced Cooperation by all stakeholders on a equal footing is indeed possible.

That is very appropriate.

Over the course of nearly a week, many hours were spent at the CSTD meeting trying to decide whether the NETmundial could even be mentioned in the report.  These were not hours spent trying to understand the Enhanced Cooperation achievement of NETmundial, or how it could be carried forward or even to find the perfect words of praise, but rather it was the churlish fight of some states to repress any congratulatory message to Brazil for convening NETmundial or for its achievements.  The argument raged on the last day of the meeting until well past 11:00 PM. For some states and their allies, NETmundial is the name that must be not spoken.

Can this possibly be appropriate?

-----

(This is a version of a NetMundial 2014 contribution

One of the barriers to accepting free standing multistakeholder governance organizations is oversight.  Accountability requires that there be oversight.  But how can oversight be done in a bottom-up multistakeholder organization without inflicting external control, for example the so-called new space, upon the bottom up multistakeholder organizations.

Often, as soon as the word ‘oversight’ is mentioned governments jump in and assert themselves as the ultimate overseers of all things related to Internet public policy.  From the point of view of the multistakeholder models of international  participatory democracy, it is impossible to accept government oversight of multistakeholder organizations.  If one stakeholder group is solely responsible for oversight, the group becomes a unistakeholder entity, no matter what appearance those running around at the bottom of the organization might give.  Government oversight of multistakeholder organizations would destroy their multistakeholder character.

There are, however, methods by which organizations do create bottom-up oversight. Some like the IETF have multiple levels of appeal on every decision; where the decisions of working groups are can be appealed to the Internet Engineering Steering Group (IESG), a group chosen by a multistakeholder Nominating Committee (Nomcom) and approved by the Internet Architecture Board (IAB), itself having been chosen by the multistakeholder Nomcom and approved by the Internet Society (ISOC) Board of Trustees.  The dissatisfied appellant can further appeal a decision by the IESG to the IAB.  Since the IESG and the IAB have very different mandates from the community, it would be a mistake to think that the IAB rubber stamps the decisions of the IESG; anyone who has observed the relations between these groups only has to recall IETF history to know that relations have not always been warm or even cordial.  

In case the appeals process is somehow perverted, the IAB decision can be further appealed to the Board of Trustees of ISOC on process issues, a group that is chosen by a combination of nominating committees and votes in the various stakeholder groups that make up the Internet Society.  Each of these appeals and results is published transparently for the entire Internet community to read, in a manner that allows comment on the IETF list.  Each of these appeals can be discussed in the open plenaries held three times a year, if so desired by the community.  Anyone who has ever followed the IETF list or an IETF plenary knows how vox populi can be quite persuasive in this environment. The history of the IETF shows that, on occasion, it has persuaded either the IESG or the IAB to reconsider its decisions.   It should be noted that there are also methods within the IETF for recall of the members of the IESG and the IAB. A chain of transparent appeals such as this, with a strong public voice is one form of bottom-oversight that has been shown to work.  A series of public and transparent appeals are, in fact, one of the tools that any organization can use to provide oversight.

The Affirmation of Commitments between the US Department of Commerce and the Internet Corporation for Assigned Names and Numbers (AOC) establishes a new method for bottom-up oversight of a multistakeholder organization.  This process is entering its 4th year.  I had the privilege of being part of the second Accountability and Transparency Review Team (ATRT2) that is stipulated in the process and write the following from my personal experience as a member of that group.

As outlined in the AOC, each of the Support Organizations and Advisory Committee nominates several members to the various review teams: transparency and accountability, the security and stability of the names and number systems, competition and consumer trust, and registrant directory operations compliance with international laws and norms (aka WHOIS).  From the candidates presented by the various stakeholder groups, the Chair of the Board or the CEO, depending on the team, and the Chair of the Government Advisory Committee (GAC) pick a review team.  To this group they add a few experts to balance out the mix of skills.  While not everyone is happy about the selection process and it does seem to favor governmental actors, at last in terms of the ATRT, it is by and large a process accepted by the community.  The groups work together for approximately a year to produce their reports.  They are served by a group of professional ICANN staff and are constrained by an ICANN Board determined budget.  The ATRT2 report discusses how this is occasionally an impediment to the group being able to do as complete a job as might be hoped.

These reviews run in a 3 year cyclical manner with the ATRT running every third year, for a year. Currently ICANN is in the second cycle of AOC reviews.  Each of these reviews provides the opportunity for multiple public consultations and several public reviews of the work in progress.  The final reports are published in multiple languages and opened for a final public review before the ICANN Board receives them.  The Board then reviews the reports, and the comments and, with the advice of Staff, decides how it will respond to the reports.  By the time the Board acts, the review teams have been disbanded. The results of Board and Staff actions are reviewed by the next review teams.

In addition to reviewing the state of transparency and accountability in ICANN, ATRT is responsible for reviewing the way in which ICANN had responded to the previous AOC reviews and for reviewing any changes that had been made in response to the previous ATRT review. It should be noted that review team reports only recommend actions to the Board, which the Board is able to accept or not to accept.  Any refusal by the Board or ICANN staff to implement the changes requested is subject to review by the next review team as the cycle repeats.  That is, ATRT3 will review the changes made since ATRT2, just as ATRT2 reviewed the changes since ATRT1.

The ATRT2 report gives a very detailed description in its review of both the  state of the organization and the degree to which ICANN complied with the first cycle’s reviews.  The determination was mixed, with many changes only being made as the ATRT2 review was ongoing.  Some progress had been made, but not as much as the first ATRT review had recommended.  As ATRT2 second report is still in review until 15 March 2014, the Board has not had much opportunity to act on it yet, though to its credit it has started working on some of the items in anticipation.

For a bottom-up review mechanism like the AOC to work, those responsible for the organization must take the report and the obligation to accept and implement the recommendations seriously.  Whether this is the case for ICANN, remains to be seen, and will be part of the proof of whether this is a workable method.  According to a blog piece by the President of ICANN, Staff has every intention of completing the necessary changes.

There are other requirements for such a bottom-up review process to work.  One of the handicaps ATRT2 experienced was the need to start its review process from a blank sheet.  We had to request reports from ICANN on every issue, including those that had been documented in the first ATRT report.  We were also unable to build upon any of the research and data collection that had been done by the first review and in the intervening reviews as that data had not been retained and processes had not been continued. During the ATRT2 review, several research efforts, for example, research on the policy development process and on measurement practices were undertaken.  It is to be hoped that that the data from these will be available to ATRT3 so that the team will not need to again start from a blank page and will be able to look at longitudinal trends in ICANN’s transparency and accountability.  Continuity of bottom-up oversight enables a better view of an organization and thus better accountability.

To do a complete and thorough review, a review team needs full access to organization data.  This is sometimes difficult as the team needs to know what data is available in order to ask for it.  In order to do an adequate review it is better to have an organization anticipate and offer the necessary information as opposed to having a gate in the process that only gives the team information when it is correctly requested and the request has been approved up the corporate and legal chain of command.  ICANN has tended toward the gating methodology as opposed to an anticipatory and open method of offering data, though for the most part after a bit of pushing and pulling, the necessary information was obtained.

ICANN is settling into the process of ongoing AOC reviews. The process needs improvement, and the ATRT2 report contains recommendations for how this can be done.  For a more in depth review, readers can consult the ATRT2 Transparency and Accountability review.  In my view the method shows promise yet to be fully delivered on.

The strongest bottom-up oversight would be achieved by combining the methods of the IETF and ICANN.  IETF offers a strong appeals mechanism and the ability to remove officers from their roles if they do not fulfill the responsibilities.  ICANN has a very weak appeals mechanism, in fact an review and repair of that mechanism was recommended by both ATRT1 and ATRT2.  ICANN processes allow for review of Board decisions, but only for process infractions, there is no means of request a review within ICANN of a decision on a substantive basis as can be done in the IETF.  And while there is an Independent Review Process for Board decisions and Staff actions, it is reputed to require a deposit in the order of a million dollars and can only deliver a decision in favor of the appellant if malfeasance of some other bad faith effort can be proven.  ICANN has no mechanism for removing Board members for the manner in which they fulfill their responsibilities other than not to renew their 3 year terms for a second or third time (ICANN Board members can serve a maximum of 9 consecutive years).  

ICANN on the other hand offers an innovative set of bottom up community reviews, whereas the IETF only initiates reviews of its processes when there is an indication that the process is somehow broken using the ‘if it isn’t broken don’t fix it’ philosophy.  It has, over the years initiated several working groups to review its processes when the community felt there was a problem. I had the opportunity of chairing one of its Nominating committee review working groups.  The recommendations of this WG were accepted and implemented.

Bottom-up oversight of multistakeholder organizations is possible.  No method is perfect and use of several methods, the so-called belt and suspenders method, gives an organization its best chance of being accountable to its community without needing to resort to a governmental and hierarchical form of oversight.  An additonal element that might be considered as part of any bottom-up oversight mechanism is affordable access to an independent mediation board for issues that can't be resolved in any other manner.

Moving forward, no new spaces are required to oversee organizations such as IETF and ICANN, though both can improve their bottom-up methodologies by borrowing elements from the other.  An activity that would be helpful would be for workshops to be held within the IGF context on the various methodologies of bottom-up multistakeholder oversight and review so that organizations would be able to learn from each others experiences. 

(Version of a contribution made to NetMondial 2014)

Principle S: No stakeholder group should define the roles and responsibilities of another stakeholder group. Nor should any Stakeholder group define its own roles, responsibilities in isolation from the other stakeholder groups.

In the Geneva Declaration of Principles Paragraph 49, the governments sitting in Geneva looked at the Internet - an Internet they had trouble defining, looked at governance of the Internet - a concept they could not define, and decided it was their responsiblity to define roles and responsibilities for all stakeholders, without an understanding of what it meant to be a stakeholder in the Internet.  They also defined their own specific roles and responsibilities in isolation from the other stakeholder groups.  In fact all of the roles and responsibilities were defined without any relation to the interrelation of roles and responsibilities or the complexities of changing roles and responsibilities over time and task.

Whether it was in the WGIG or during the later stages of WSIS and ever since, the governments have refused to reconsider the definitions made without the consent of the other stakeholders and without a full understanding of the interrelations and variability of roles and responsibility among actors in Internet governance

The definition by governments of the roles and responsibilities of other actors in Internet governance has been one of the most fundamental blocks to making progress on many of the issues of Internet governance. How does one cooperate and find consensus with a group that is incapable of recognizing ones actual roles and responsibilities?

We cannot go back and correct these government declarations, as much as some of us would like to do so.  We can only move forward and try to understand and to recognize the actual roles that the various actors fill and the responsibilities they assume in these roles.

In defining the roles of various actors we may also do well to avoid the simple categorization of Government, Private Sector and Civil Society. Over the years it has become obvious that whether one was speaking of Governmental actors or Non-Governmental actors, the breakdown was far more complex that a simple triad.

In one respect it is fairly clear, there are Governmental and Non-Governmental actors. That is the original UN distinction and regardless of what the WSIS outcome documents say, that is essentially still the breakdown in effect.  Whether it is the IGF MAG or UN Working Groups (WG) such as the WG of Internet governance (WGIG) or the WG on Enhanced Cooperation (WGEC), half of the seats always go to Governmental actors and half of the seats go to Non-Governmental actors according to various proportionalities among the stakeholder groups within the Non-Governmental actors.  The Governments are never willing to accept less than half of the seats.  

Going forward, if we wish to make progress, we need to recognize the full diversity of stakeholders.

In terms of the subdivision of Non-Governmentals, that never breaks down as simply as Private Sector, Civil Society plus maybe Academia and Technical Community.  As was seen in /1net, as soon as one starts to do any breakdown of stakeholder groups, further stakeholder groups appear, whether it is Private Sector breaking down into Big Business, Little Business, Service Provider, Registry, Registrar, Reseller or owner of intellectual property, it does not remain a fixed stakeholder group for very long.  Likewise Civil Society quickly starts to break further into stakeholder groups like rights advocate, aid worker, philanthropy or NGO staff. Beyond these stakeholder groups, groups like Media and Librarians look for their place in the stakeholder mix.  The basic Private Sector and Civil Society, though, don’t begin to cover the groups like User, Community Informatics or Technical Community that can be either Private Sector, Civil Society or both.

Government stakeholders may also be broken down into stakeholder groups beyond the diplomats and bureaucrats that are the normal participants in the multistakeholder processes.  As one starts to look at the Governmental stakeholders one quickly sees the emergence of other stakeholder groups such as regulators, legislators, jurists, military, intelligence workers, law enforcement, privacy and data protection officers, intergovernmental civil servant and others.  The complexity of the issues being discussed often requires the participation of many of these stakeholder groups.

While the division between Governmental and Non-Governmental remains relatively clear, further breakdown is dependent on the task and hand and the skills needed.  The ability to break down the roles of the various actors is often dependent on the task that is being discussed.  One also finds that the same individual can occupy multiple roles at the same time, or diverse roles over an extended period of time.  Government workers can be technical contributors.  Technical contributors, and even civil society members, can be part of government delegations.  Defining roles is complex and defies as simple a division as we find in the WSIS outcome documents.

When one starts to consider the responsibilities of each of these roles one finds that the responsibilities also vary over issues, time and are subject to the phase of a process. For example one stakeholder may have a primary responsibility while an Internet protocol is being designed, though other stakeholders would still have responsibilities that contributed to the trade-off decisions made in multistakeholder discussions.  Once the protocol is designed, a different set of stakeholders may have the primary responsibility, without eliminating  the multistakeholder process that allows all to assume their responsibilities and contribute to developing appropriate policies and implementations. When it comes to making national public policy, a task where government workers have priority, all the other stakeholders still have their own responsibilities in the process.  In terms of international Internet policy all stakeholders have roles and responsibilities, and because of their ability to create treaties and their obligations that derive from the Human Rights Declarations and Covenants, governments do have a special responsibility to defend the human rights, without having the primary responsibility for Internet public policy.

The roles and responsibilities of stakeholders are not fixed, they vary with the circumstance and the type of issue being dealt with. Divisions into 3, 5 or 7 fixed stakeholder groups will always fall apart at some point in the process.  This does not mean that there are stakeholder groups, though a multistakeholder model such as that in the IETF recognizes stakeholders without forcing them to divide themselves into fixed stakeholder groups.  It does mean, however, that we need a more complex and fluid notion of stakeholders and stakeholder groups if we are going to fulfill the promise of the multistakeholder model, without always finding ourselves in the situation of either leaving some group out in the cold, or finding stakeholders shoehorning themselves into groups that do not quite fit the reality of their responsibilities.

We cannot change the the WSIS outcome documents.  They are part of the history we are building the future of Internet governance upon.  But we can rethink, and refine our understanding of these roles and responsibilities in light of reality and the experience we have gained over the years.

(This is a version of a contribution to NetMundial 2014.  Changes made since submission indicated below)

Overview

Any plan to transfer Stewardship of IANA over to another entity should be preceded by extensive consultations with all stakeholders.  This is one plan, among others, that should be discussed over the course of the May 2014 - May 2015 so that a consensus solution can be found prior to September 2015 when the current contract expires.  It needs to be understood that any proposal for transition from the current IANA arrangements or US Government oversight would require a transition plan that was well formed, endorsed by stakeholders and the key customers of IANA services in order to guarantee the security and stability of the Internet.

Principles of the Roadmap

In defining a roadmap for IANA several principles should hold:

Stability and security of the Internet should be the highest priority at all times.

Completing the plan to bring IANA functions under ICANN as originally documented in the White Paper is an advisable and overdue milestone, but not the ultimate goal of this proposal.

Oversight of IANA and Root Zone Managements should be a multistakeholder function

No single stakeholder group should have sole oversight of IANA or Root Zone Management

No single country should have a preeminent role in overseeing IANA

As IANA’s functions are limited to data maintenance, database provision and coordination -- whose methods are determined in IETF, ICANN and the RIRs -- IANA should not have a policy role. Each of these organization must retain the oversight of its own data.

Oversight of IANA will focus on performance, adherence to Service Level agreements and MOUs with the organizations with which it has signed MOUs (referred to as Partners elsewhere in this document).  These MOUs should be modeled on the current MOU between ICANN and the IETF, as described in RFC2860, RFC6220 and in subsequent updates to the MOU, with similar reporting requirements and appropriate service level agreements.

Reporting requirements and service level agreements between IANA and its partners should be negotiated and executed in a public and transparent way; ensuring that all affected stakeholders are involved in the development of those requirements.

Scope of the IANA Operations Function

Under this proposal, IANA’s Operations Scope would be limited to four major activities:

global apex of Internet numbering resources (for example IPv4, IPv6 addresses, AS numbers, etc.);

global apex of Internet DNS-based naming resources (including the root zone of the public, global DNS, management of the .arpa and .int top-level namespaces, and IDN practices)

management of Internet protocol parameters as required from the IETF

maintenance of the Internet’s time zone database

The intent of this proposal is insure that the scope of the current IANA Operations Function is not changed or added to during the transition to Stewardship by an independent IANA Stewardship Group (ISG). Once the IANA was a fully independent organization it is intended that the functions listed above would be added to, changed or even moved to other organizations only through negotiation and consensus agreement between the IANA Stewardship Group and those organizations that are “Partners” of IANA (see below).

Plan

In order to complete the White Paper Plan the US Government should first relinquish its oversight role to a new IANA Stewardship Group while the IANA Operational Activity temporarily remains executed by ICANN.  The IANA Stewardship Group would be an independent group (see below) that provides strategic and planning direction for IANA’s Operational Activity.  This intermediate step would see the IANA Stewardship Group operate in much the same way as the Internet Architecture Board (IAB) operates under the Internet Society (ISOC) umbrella: an independent group where ICANN would be responsible for IANA Operational Activities by where the IANA Stewardship Group would be responsible for the strategic direction of IANA.

This would be done as an intermediate step before IANA is established as an independent entity.   ICANN’s limited, temporary stewardship of ICANN should be defined in MOUs between ICANN and the various Internet organizations that rely on IANA, such as IETF, and the RIRs (the partners) for a maximum of 3 years.

Immediately upon the transferring IANA to ICANN stewardship, an IANA Stewardship Group would be responsible for:

Oversight of IANA function and Root Zone Management under the ICANN corporate umbrella according to the MOUs.

Consultation with stakeholders on the structure and processes, including oversight, of a free standing IANA

Within 3 years of the date of the transfer, establishing an independent IANA with Root Zone Management responsibilities.

IANA Stewardship Group

The IANA Stewardship Group is intended to reflect broad stakeholder input into the operations and strategic direction of the IANA Operational Activity during the interim period.  The membership must reflect a globally diverse balance of the key stakeholders who use the work products of IANA.  The IANA Stewardship Group should be organized composed of:

- 1 Representative from each of ICANN supporting organizations

Addressing Supporting Organization (ASO)

Country Code Name supporting Organization (CCNSO)

Generic Name supporting organization (GNSO)

- 1 Representative from each of the ICANN advisory committees

At-Large (users) Advisory Committee (ALAC)

Government Advisory committee (GAC)

DNS Root Server Advisory Committee (RSSAC)

Security and Stability Advisory Committee (SSAC)

- 1 Representative from each of the Regional Internet Registries

AFRINIC

APNIC

ARIN

lacnic

RIPE

- 1 Representative from each of the following ISOC entities

Internet Society Chapters Organization Advisory Council

- 1 representative from the Internet Architecture Board (IAB)

- 1 representative from the Internet Engineering Steering Group (IESG) for IETF

- 1 representative from the Root Zone Operators (on a rotating basis among the root Zone Operators)

- 1 representative from the IGF Multistakeholder Advisory Group (MAG) in each of the following stakeholder groups:

Academia

Civil society

Private Sector

Government

Intergovernmental Organization

Eventual structure of independent IANA

The framework advised in this recommendation is that of an International Non Governmental Organization which has host country agreements with several countries that guarantee that IANA would be governed by its MOUs.  It is recommended that the IANA data and functions be distributed in several countries that provide the greatest protections for an open, accessible and trusted Internet. The oversight mechanism for the independent IANA must be defined by the IANA Stewardship Group prior to the signing of MOUs with IANA Partners (see Milestones, below).  In addition to resolution of conflicts by internal processes there should be an appeals mechanism that relies on a trusted International Arbitration entity. The initial internal conflict resolution processes and appeals mechanism must be in place prior to the signing of MOUs with IANA Partners (see Milestones, below).  The structure and framework for IANA should, to the full extent possible, be transparent and accountable to those with whom it has signed MOUs.  

Milestones:

MOUs USG turns control of IANA over to ICANN.  September 2015

Consultation on form of the free standing IANA 2016 -2017

Negotiation of host country agreement 2017 -2018

MOUs signed and IANA established as free standing in 2018.

Funding

Funding levels to be established as part of the MOU preparation with agreement prior to the signing of MOUs with IANA Partners (see Milestones, below).  Questions of whether IANA should charge for any of its services to be resolved at a later time and to be governed by the MOUs with its partners.

Changes made:

- Addition of Root Zone Management oversight to ISG

(The following is a version of a submission made to NetMundial 2014)

One of the first principles of Internet governance has been the democratic principle as it contains within its aspirations the fulfillment of many other human rights’ based principles.  There are few who would argue against the principle that Internet governance ought to be democratic.  There is disagreement, however, on whether the multistakeholder model, currently being used, represents a way forward for democracy and whether it fulfills the democratic principle that is central to our discussions.

One of the most common complaints against the Multistakeholder approach is the it by-passes the democratically elected representatives of the people.  Often when one is sitting with governments, one hears a statement of the form:

“ We do not know what Multistakeholder means, but we all know what Democracy means”

Among those who consider themselves democratic, each with its own definition of democracy, we find:

Autocracy 1.0 sometimes known as People’s Democracies

Autocracy 2.0 where one is offered the ability to elect the incumbent

Constitutional monarchies

Parliamentary republics

Presidential mulch-partite republics

Simple majority rule democracies

Democracy that incorporates minority rights in the voting

Democracy that impedes minority rights in the voting

Democracy that balances national religious membership

Plebiscite based direct democracy

Since the time of Aristotle we have been arguing about Democracy and invoking its name for all sorts of systems where the people, or at least some people, have some say in their governance regime.  Even Athens was democratic, at least for males born in Athens.  

And even when we look at the most basic form of multilateral expressions of democracy, we find that the ‘one person  one vote’ is more an ideal than a reality, where nations with a population of tens of thousands have the same vote as those with a population of over a billion.  Yet we view the UN as representing a form of democracy, we have seen that in many cases, this still does not serve the multivariate interests of the people - it is focused on the notion of states as entities and it is out of scope to serve the needs of people within a country.  And it has proven itself as inadequate for handling the needs of the Internet, whether it was the creation of the protocols and other technology that created the Internet or the issues and policy questions that resulted from the behaviors on the Internet.  the problems are too complex for any one grouping, including a multi-lateral grouping to handle.

The question comes down to what we mean by democracy on the Internet?  

When we speak of  democracy, especially with regard to the Internet, we need to develop ever improved forms of participatory democracy.  Participatory democracy is an advance on democracy that has seen few examples in the world to date outside of the Internet, though there some.  It is a form of democracy that is enabled by the Internet and one that may only have been possible in the small town meeting hall before the current age.  The possible scope of participatory democracy is one that balances the best of representational democracy with the ideal of direct democracy.

The variety of multistakeholder models are forms of participatory democracy.  Multistakeholder models build on, and includes, the State based multilateral system in an attempt to move towards more participation by the people and the organizations they form.  Some states may do a decent job of representing the citizen residing within their geographically bounded territory for a particular set of interests related to that place and time.  The states, however, do little for a wider set of rights-based interests people may have, do nothing (or worse) for the non-citizens under their control (especially those who are undocumented), and have little to say about inter-jurisdictional disputes in the absence of treaty.  Beyond that the state frequently infringes upon the rights of citizens, residents and non-resident alike; rights they have agreed to by covenant.  The other human rights based interests require greater participation than can be achieved by governments alone.  It is often Non Governmental Organizations that serve these rights and cross-border interests without discrimination based on geography, nationality or other circumstance.

We all have seen, though, many ways in which the multistakeholder models that are being deployed are still underdeveloped and even flawed at times.  there is still a lot to be complained about and improved upon.   But to misquote Winston Churchill’s quote on democracy:

“Multistakeholderism is the worst form of governance, except all the others that have been tried.”  (Drake 2011)

The WGIG Background Report (Page 239 Paragraph 58) explained:

“Democracy is defined in different ways in a multilateral context and by different stakeholders according to their particular perspectives. Governments generally hold to a view based on national sovereignty with equal say for all countries and decisions reached through consensus. Each citizen is held to be represented and to be able to influence decisions through national consultation and decision-making mechanisms. Some are of the view that most governments include members of their civil society in their delegations to the extent practical and in any case they take into account the interests of their civil societies when establishing agreements at multilateral bodies. Civil society advocates on the other hand would argue that the term goes beyond this, requiring direct full participation in decision making by many nongovernmental groups from the private sector and civil society. Furthermore, they have expressed the view that governments are not actively or consistently consulting with other sectors of society prior to establishing agreements within multilateral bodies.”

And when the context is the Internet, this extends to the technologists who built and preserve the system as well as the Internet Service Providers and other industries that deploy the technology.   Nongovernmental organizations (NGOs) and epistemic (or expert) communities provide various kinds of information that are relevant to the pursuit of collective goals.

Even when it comes to governmental representation, governance of the Internet requires more stakeholder support than just the diplomatic and bureaucratic representatives of nation states that make up the multilateral system.  The process needs the representation of the variety of governments stakeholders, including regulators, privacy protection, law enforcement, parliamentarians and others.

For humanity’s interests to be truly represented, we need a multistakeholder framework for participatory democracy that includes all people and organizations who have a stake in the subject at hand (in this case the Internet) who care to participate; each participating with their own special perspectives and roles; with roles and responsibilities that vary depending on the task at hand but which, in the larger scope are equal, just as Palau is equal to China in the UN.

Whether it is NGOs that represent the needs and interests of the people they serve, the technical community in their role as the creators and maintainers of the technology, or the academics who attempt to understand the dynamics of the social systems within which we live in this highly interconnected world, all of the stakeholder groups have a place at the table where they can discuss the issues and decide on solutions for Internet governance on an equal footing.  Anything else leaves some interests without representation, and thus leaves the populations who feel and express these interests unrepresented, at least in that respect.  

Enhanced cooperation is the intentionally ambiguous term applied in Tunis in 2005 as part of the a government declaration, the Tunis Agenda.  Since the beginning it has had many meanings, that generally fall into one of three clusters:

Cluster G: By those who favor Governmental and Inter-governmental control of the Internet;

Cluster M: By those who favor distributed bottom-up multistakeholder forms of management and governance for an open and  Internet;

Cluster R: By those who generally believe in an open Internet but who see the necessity for various regulatory functions.

The Tunis Agenda  is a special document.

For some it is scripture-like, a well worn book with dog-eared pages that can be quoted by paragraph number. For example Cluster G might say according to 69 and considering 35a, government have sovereign authority over Internet public policy" or Cluster M might say "according to context given in 55 thru 85 and considering the dissimilarity between the role of governments as described in the first sentence of 35a and the second sentence of 35a, this is not the case," and so on - there are many such quotes, enough to fill the libretto of a light opera.

For others it offers both a promise and a trap.  It offers the promise that all stakeholders have roles and responsibilities in the determination  the public policy of the Internet.  It also traps stakeholders in roles defined by Governments, definitions that elevate governments above the people. In other words, paragraph 35 and 36 are disasters defined by governments to increase their power while denigrating the power of other stakeholders. 

This document defined by governments with little input from other stakeholders is an important corner stone of the ongoing discussion of Internet governance.  But its diplomatic ambiguity has been such as to keep everyone dissatisfied in its deployment.  That is why in 2012 the UN General Assembly adopted a resolution that mandated the creation of a multistakeholder "working group on enhanced cooperation to examine the mandate of the World Summit on the Information Society regarding enhanced cooperation as contained in the Tunis Agenda."

We were scheduled to complete our work during this meeting.  We did not.  While in the real world some might be tempted to think of the meeting as a dismal failure, in the world of the UN and especially in the world of international public policy dialogue on Internet governance, the meeting was a success.  Not a great success, but a success. 

Fortunately a transcript of the  words everyone spoke during the 5 day meeting will be available at some point <links when they become available here> and there are chair's daily summations included in those reports, so I will not try to report on the meeting.  Will only give a few impressions of what I thought was important. In some places the discussion is dry, and some cases rather witty. 

We never managed to discuss some of the most important considerations, those having to do with developments concerns and those dealing with removing the barriers from participation in Internet governance.  We spent most of the time circling the drain on the interpretations of 69 and 35 (see above).  This is disappointing since the whole point behind the World Summit on the Information Society (WSIS), the process that culminated in the Tunis Agenda was about how to bring the developing and undeveloped part of the world into the the Internet age (also known as bridging the digital divide).  Many of the members of the working group are resolute that this will be the focus of the next meeting.  It better be, or else we will have failed.

Enhanced Cooperation, by Cluster M interpretation of the Tunis Agenda, was supposed to be part of the Internet Governance Forum (IGF) debate.  However, since several countries from Cluster G, so disliked this notion, they influenced the UN General Assembly to rend these goals asunder.  Because of this, the IGF, a forum that is able to use its bully pulpit to motivate change in other organization was barred from even discussing enhanced Cooperation. Among the yet to be fully agreed resolutions is one that finally allows that, while the IGF and Enhanced cooperation are separate processes, there should no longer be a restraining order that prevents the IGF from making recommendations on Enhanced Cooperation.  Should this recommendation get full approval in the next meeting, it will be a big step forward,  At this point I am grateful for the wee step forward exhibited in the proposed resolution.

Many organizations have done their best in enhancing cooperation over the years despite the vehement objection from some of the charter members of Cluster G.  they claimed that these could not be Enhanced Cooperation because they weren't being by for and solely of Governments.  The dialogue and conversation in the meetings allowed a glimmer of acceptance that perhaps these organization had helped in enhancing  cooperation, even if everyone wasn't quite ready to call them Enhanced Cooperation.  The word games we play in these meetings are really a philosopher's happy place, but this is another half step forward.

These ware some incipient glimmers of a willingness to review the unistakeholder defined multistakeholder definitions.  This discussion, while categorically rejected by Cluster G, was nearly accepted by some of the governments of Cluster M, as long as no one tried to reopen the Tunis Agenda.  One of the most interesting, and perversely hopefully discussions of this was when one government declared (approximately) ' Some declare the multistakeholder model to be a form of democracy. We don't really know what multistakeholder means, while we do know what democracy is.' At which point I looked around the room at the countries represented in the room and thought about all the different forms of democracy, and near democracy, and tried to imagine what the common definition of democracy might be.  I felt comfortable that the confusion and disagreement over the definitions of the multistakeholder model and democracy were of a similar magnitude.  Since I define the multistakeholder model as a intermediate form of participatory democracy, I feel quite comfortable that we would eventually be able to define it in such a way as to allow it to blossom.

I think I may have more to add, but I need to pack and prepare to travel to my next stakeholder meeting - the IETF.

We have more to do to complete our work, but I think we are on the way.  I hope we can fulfill our function with distinction in our next meeting and become a 'great success' - which is UNese for 'they did ok'.

I think the new gTLD program will have many successes. 

It is a failure, however, when to comes serving developing and less developed economies, especially the communities in those economies.  Actually it failed in serving communities anywhere, but it really failed when it came to serving the peoples of the world outside WEOG (the UN designations for the developed Western European nations and Others group; others Including AU, CA US, and NZ).

The first part of the failure was that it cost too much. Estimates are that beyond the exorbitant application fee, the applications cost $1+ Million USD when you take fees, delays, fees, objections, fees, and the community proving grounds (aka The New gTLD Gauntlet called CPE) into account.  The ICANN Board did offer developing economies a discount, but the program was developed too late to be of any use but to a very few. Also it would have only amounted to 10% of the total projected costs of an application, perhaps generous in relation to the ICANN fee but not enabling when considering the full costs.

Another facet of the failure with the program, was the absence of appropriate outreach.  A few speeches in Davos and ads on a few websites do not constitute appropriate outreach to developing economies. Specific outreach was required early on to make sure that the opportunities could be included in long range planning.  The participants at ICANN certainly had years to plan before the fight for new gTLDs.  To call what happened before the new gTLD program launch an "outreach to developing economies," would be delusional, at best.

The third part of the failure was the absence of any effort to build the necessary capacity of prospective applicants from developing economies.  One does not go from being a local enterprise to an ICANN Registry without area specific skills that need to be taught or self learned over a long period of time.  Unlike the players in residence at ICANN, possible applicants in developing economies had little lead time to develop the skills after learning of the opportunity, if they ever did hear of it..

These failure convince me that before any other rounds, ICANN must develop a method for remediation for developing economies, especially communities in those developing economies.

Remediation will be a lot of work. Minimally it would require:

It would entail better understanding the problem; there is an At Large working group that is working on that.

It would involve capacity building in Registry and Registrar operations in developing economies. 

It would require  pro-bono pre-application mentoring, and

It would involve rock bottom pricing, possibly even free as the Government Advisory Committee (GAC) advised the board early in the current New gTLD program.

But this can be done.  The new administration at ICANN has now built a formidable communications and outreach team. With guidance from the community, I am sure that ICANN can create a viable and successful remediation program for this new gTLD round.  It would be a good thing.

One last thing, the time is now to start this work.

*

In the midst of the stakeholder indigestion going on in /1net list I got to thinking about what group i belong to:

Am I Academia?

Well I do teach at the Schools for Internet governance, I [am, used to be] an adjunct professor in Sweden , I still give lectures for money and I contribute to scholarly writing (at least I hope it is a contribution).

Am I Business?

Well I have a registered DBA, I file taxes as an independent professional and I claim business expenses on those taxes.  Additionally one of my current part time contracts is with a for-profit business, dotgay LLC, where  my job is to bring civil society considerations of the gay community into the business discussions and to give techno-policy Internet advice.

Am I Civil Society?

Well I have had a part-time contract with APC, a civil society advocacy organization that brings together many civil society organization and individuals together. I am a member of the NCSG at ICANN and a long time member of the IGC where I have a vote.

Am I Technical Community?

Well I still contribute to technical topics, part my job with dotgay involves trying understand how to provide privacy enhancement to endangered gay users in countries like Nigeria, Russia, Uganda ,,,, I  participate in the IETF and still do technical research on various issues. I belong to Internet Society, IEEE and the ACM and even read many of journals they produce.

If that is the breakdown, then I guess at various times I belong to each of the stakeholder groups.  At times, I have seen my interests, the ones I care about down deep, have been supported by each of the groups.  And at times shafted by each of these groups.