[At-Large] Chiba response to FNOI

[ebw at abenaki.wabanaki.net]

> Which is why, I suspect, the Internet Governance Caucus List discussion
> thread with a subject line incorporating the word multi-stakeholder
> ended up with over 100 messages.

Fred Baker has expressed some skepticism concerning "internet governance".

I share some of Fred's skepticism. I'm somewhat skeptical about the term
"multi-stakeholder" too.

>From a paper I wrote recently for a class (at a law school) on a conflict
between state law (in the US) creating trade secrets and the federal Clean
Water Act (or more generally, with the APA):
-=-
"In the period between the Second Indo-China and First Gulf Wars, Congress
enacted environmental statutes which generally:

	o created private causes of action for statutory violations,
	o mandated reporting releases of toxic chemicals, and
	o disclosure of violations of media quality standards
	o required affected agencies follow strict notice-and-comment
	  rulemaking procedures, consistent with the APA. 

Congressional intent reflected the progressive reform politics of the
late 19th century in a "monitorial citizen", informed on the issues
rather than loyal to party or dependent upon the executive, and in the
repeated, explicit strict notice-and-comment rulemaking requirement on
agencies.

This intent is frustrated, the "monitorial citizen" incapacitated and
rulemaking made arbitrary and capricious through the elimination of
effective notice-and-comment, by non-disclosure of the chemical
compositions of fracking fluids supported by state law creating trade
secrets."
-=-
Now granted slickrock hydraulic fracture isn't network policy, but the
role of the "monitorial citizen", in addition to the regulated industry
and the regulating agency isn't quite the same thing as creating some
lumps (or "filters") in the GNSO and requireing all Comment consequent
to Notice to be made through these lumps (or "filters"), most of which
are infact, dominated by the regulated industry (contracted parties), or
would be regulating industries (marks and their captured constituencies).

The problem isn't greatly improved by attaching non-policy making advice
originating entities (the ACs).

So it a sense, the ICANN usage means "with the monitorial citizen access
to policy making intermediated by some means", which may be significantly
closer to the Internet Society of China's intended usage than the DoC/NTIA
usage.

Cheers,
Eric