[At-Large] ICANN Accountability Mechanisms

parminder parminder at itforchange.net
Sat Jan 8 10:52:20 UTC 2022

Dear Wolfgang

Thank you so much for your responses. 2022 is indeed turning out to be a
'new' year :) . Hope you will stay the course so that we hopefully can
(1) try and see if some mutual agreement if not on solutions then at
least on issues and 'facts' is reached, and (2) in any case, help others
remember or develop very useful knowledge on these issues. Pl see inline

On 05/01/22 3:29 pm, Wolfgang Kleinwächter wrote:

> Hi Parminder,
> here are some comments:
> @ IBSA: My problem with IBSA was,
To keep things to specific and thus verifiable facts; i understand you
are referring to India's CIRP (Committee on Internet-Related Policies)
to the UN in Oct 2011. It had a precursor in a meeting a few weeks
earlier in Rio de Janeiro involving IBSA officials, which developed a
short document, of a para-official status, though the meeting was
recognized meanwhile in an IBSA Summit statement. I can discuss either,
but I think you mean India's UN-CIRP proposal, which -- unlike the IBSA
doc -- was an official proposal from India to the UN. From now, I will
be specifically referring to and discussing hat. (Happy to discuss the
IBSA meeting/ doc, and its history, etc, if you wish).

> that the proposal aimed at the establishment of a centralized
> intergovernmental decision making body for all Internet related issues.

When you make such statements, you need to keep comparing UN-CIRP
proposal with OECD's Committee on Digital Economy Policy (CDEP), which
is the issue I deliberately introduced, precisely to prevent you/ others
from getting away with vague descriptions and allegations, like
'centralized', 'intergovernmental', etc.... Therefore, please be so good
as to state how OECD's CDEP - -the key center of global digital policy
making today -- but undemocratically controlled only by the richest
countries of the world, while expressly pushing its norms, principles
and legal instruments on the whole world -- IS NOT 'centralized',
'intergovernmental', 'decision-making' etc. These things you allege
India's proposed UN-CIRP to be. Also do address the counter allegation
that OECD-CDEP is 'undemocratic', as only involving the richest
countries of the world, but pushing its norms, principles and legal
instruments on the whole world. The latest one in this regard being
its**new legal instrument on AI governance
<https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0449>. It
first immediately pushed it on the G 20
, and now wants the whole world to adopt it through its euphemistically
named 'The Global Partnership on AI <https://oecd.ai/en/gpai>".  To me
this is what looks like 'centralized', 'intergovernmental',
undemocratic, neocolonial, and so on... Anyway, I await your response.

> The idea with the advisory committees for non-state actors (copied
> from the OECD) was a good one.
Thanks. But as far as I can see, it still made no difference at all to
people/organizations like you, ISOC, developed countries, and much of
the IG civil society.  Even with both -- OECD's CDEP and India's
proposed UN-CIRP -- having exactly the same institutional design,  you

(1) kept holding your collective nose over the UN-CIRP being
'intergovernmental', and refused to engage with it even as a proposal
open to suggestions and change

(2) while at the same time kept calling OECD-CDEP as agreeably
'multistakeholder', and gladly working with it.

That was my principal point, and your response unfortunately makes NIL
progress on that.

> But the critical point was, that it was a "one size fits all" proposal.
Again, you need to explain your generic statements like this one... How
is UN-CIRP "one size fits all" and OECD-CDEP not so. You can check
CDEP's breadth of scope and work -- having worked in issues as diverse
as security, labor, gender, children, data governance, AI governance,
consumer protection, broadband, tax, blockchain ........ . Also see how
it also works in conjunction with other OCED committees/ sections on
overlapping issues, which was/ is also intended for any such UN based
committee/ body.  So, indeed, your "one size fits all" critique of the
UN-CIRP proposal is also as bogus.

> When I asked Tullika at the IGF in Nairobi whether ISBA would be
> responsible also for IP address management, she was very unclear in
> her response.
You mean not IBSA, but the proposed UN-CIRP, right.

Yes, this area needed more engagement and more clarity. But all initial
proposals come with some points that others may not agree with. You let
know what you agree with and what not. It is very convenient that --
because this specific thing is not clear, so I wont even engage and let
know WHAT I INDEED DO AGREE WITH. That is called a convenient excuse or
a ruse. Meanwhile you to engage with -- and never criticize --  OECD-
CDEP. In which case, this 'small point' that the OECD is a club of rich
countries trying to dominate the world -- including taking over global
digital policy/ norms/ soft-law making -- does never rankle you, and you
in your entire career have not mentioned one word about it.

Meanwhile, within months of making the UN-CIRP proposal, at a UNDESA
consultation on 'enhanced cooperation' in Geneva in May 2012, the Indian
representative made a statement explaining the context of the CIRP
proposal, very significantly observing that: 

    “...a global view in the overall interest of the global community on
    the issues of the public policy for Internet Governance would be the
    right approach” and that “India would be pragmatic and flexible in
    its approach”. India asked for a Working Group on Enhanced
    Cooperation to undertake this discussions to discuss “all aspects of
    Internet Governance that have been raised so far, without
    pre-judging the outcome”.

Can you think of a more open attitude? (Btw, havent heard OECD ever say,
yes, I agree, OECD deciding digital policy, norms, soft-law etc for the
world is a problem, and we are open to discussing it! Why dont you ever
try your charms on them?)

Meanwhile, the UN Commission on Science and Technology for Development
(CSTD) met the next day after 'enhanced cooperation' consultations,,
where I had the honor to formally address the session along with a few
other unmentionably high dignitaries. I specifically took up the matter
of the confusion regarding ICANN etc oversight vis a vis India's UN-CIRP
proposal (the issue that you raise here), calling these concerns as
being well-placed. I proposed that the issue of -- and institutional
proposals for  --- general Internet related policies (OECD-CDEP style)
be separated from that of ICANN oversight. This fully addressed the
confusion that you refer to here. To quote

    "In this regard, India's CIRP proposal may therefore need to be
    re-worked by removing the CIR oversight function of the proposed
    CIRP. Other more innovative methods for internationalizing CIR
    oversight can be found. I will not be able to go into the details
    here, but if we earmark this as the key problem, and list the
    various concerns around it, I am sure a mutually satisfactory
    solution can be found."

After I spoke, the US CSTD rep, one Mr Andrew I remember,  during the
session, said that my proposal of a 'separation' of institutional
approaches was a very good and constructive proposal.

So much so for your excuse that you have remained so mortally confused
about that one thing of "ICANN oversight issue" in India's UN-CIRP
proposal, that is has foreclosed all your engagement with it, as well as
any proposal resembling it. (  (therefore) meant nothing to you and you
did nothing about it.

(This meanwhile still does not explain your non engagement with IT for
Change's proposals -- being made from right after WSIS. Taking up
OECD-CDEP's institutional model for a UN body was first proposed by ITfC
in 2010 consultations by the UN on 'enhanced cooperation'. This indeed
is where India picked its UN-CIRP model from. But, IT for Change has
been doubtful from the very start -- beginning from this 2010
contribution -- about the wisdom of mixing the function of developing
general Internet-related policies and the function of oversight over
"ICANN plus". Our further submissions, including to the 'Net-Mundial
process' and WGEC, clearly testify to this.)

Coming now to this discussion shifting to the UN Working Group on
Enhanced Cooperation (WGEC), which was set up on India's insistence with
more or less the sole purpose of resolving the above and related
stalemates. (In the interest of brevity, I will skip how you and others
tried to subvert the formation of this WG, by now, somewhat
spectacularly, insisting that the IGF itself was 'enhanced cooperation',
after having for a few years post-WSIS insisted that IGF and enhanced
cooperation (EC) were indeed so dramatically different and separate that
EC could not even be discussed at the IGF!!! This is in the records of
MAG meetings and MAG consultations. So much so that I was refused to
have a workshop on EC in the IGF program, and had to get the Brazilian
government to strongly intervene to get it accepted. But, ok, lets come
back to the original track.)

Wolfgang, we were both members of the WGEC, and therefore our
responsibilities for what happened in the WGEC (and what did not) are
direct - at least per what we ourselves did and, equally important, did
not do... Fortunately, not just the documents but complete transcripts
of the meetings of WGEC are available on the CSTD website.

In the entire 4 years of WGEC existence and its numerous meetings, I did
not see you once raise 'this confusion' that seemed to have stalled your
entire engagement with the most important IG institutional proposal to
come from the South or developing countries -- I mean the UN-CIRP and
the similar. Any reason for that? But matter not, I (and others) still
gave specific proposals, in written as well as oral submissions, which
/inter alia/ did specifically address 'your confusion area', including
proposing separate institutional mechanisms for 'general Internet
related public policies' and 'the ICANN oversight issue'.  I kept on
saying over and over, in every single meeting, that this proposed
'general internet related public polices' based CIRP like body at the UN
is now definitely the EXACT REPLICA of OECD-CDEP, now that the 'ICANN
oversight' confusion was also clearly removed. YOU DID NOT RESPOND ONCE.
So, it is a bit amusing to hear you now, after a decade of the original
proposal, justify your non-engagement with UN-CIRP proposal in this
manner, blaming it on 'a particular confusion', which has publicly --
including at official forums -- been cleared many times over.

Sorry, Wolfgang, your excuse or justification does not hold ground.
Provable facts speak otherwise - loud and clear.

To substantiate,you may refer here
and here
the proposals made by various parties to the the two editions of
UN-WGEC.  These amply evidence that complete institutional proposals
(including EXACT OECD-CDEP kind) were repeatedly made, and any confusion
vis a vis them as related to the 'ICANN oversight  issue' repeatedly
cleared. To these you made no responses, and showed ero engagement, over
the 4 years of the existence of the WGEC, or afterwords .. Neither did
you forward any proposal from your side. 


For the sake of completeness, before closing let me explain why India's
CIRP proposal indeed had that provision about "Coordinate and oversee
the bodies responsible for technical and operational functioning of the
Internet, including global standards setting".

Do remember that as per WSIS's Tunis Agenda ' para 70, all governments
should be able to on an equal footing engage in the "development of
globally-applicable principles on public policy issues associated with
the coordination and management of critical Internet resources". This is
clearly not the case at present. This above section in India's UN-CIRP
proposal was proposed to give effect to this mandate from the WSIS.

You or others who do not agree to the manner that India's UN-CIRP
proposal tried to give effect to that -- TA p 70 - mandate from WSIS are
welcome to provide counter-proposals. As IT for Change did. But you
havent ever. You must understand that the Government of India could not
ordinarily have made an institutional proposal to the UN, as arising
from the Tunis Agenda mandate, which left out this crucial part spoken
of in TA p 70.  Meanwhile, India did make official statement immediately
afterwards that they were open to hear other views -- but such views
never came.....

The context of India's proposal is important. It is not that ICANN-plus
at that time (or even now) existed free from government oversight. ICANN
was at this time under express US gov oversight, and, well, it still is
under US oversight. Everyone knows why ICANN went back on the issue of
.org sale -- bec governments in the US insisted that it did. That is
what gets called as OVERSIGHT. But I know such minor things entirely
bypass your critical thinking and scrutiny.  It was entirely fair for
those who developed India's CIRP proposal to seek transfer of
ICANN-plus's oversight from just the US government -- as at present --
to a globally more democratic system. You have alternative to how CIRP
tried it? Please present them. I havent heard ever of  them if they
indeed exit. IT for Change DID present constructive alternatives to how
CIRP approached the issue, which too you never engaged with.

In fact-- while at the subject let me also bring this up -- during the
IANA transition process -- when I along with the Brazilian gov kept
asking for jurisdictional immunity for ICANN under US's own existing law
you never supported or even responded to our proposal - -even when you
were very actively engaged with the transition process.. Under an
existing US law, US does provide such jurisdictional immunity, including
to non-UN global entities... The possible 'solution' of such 
'jurisdictional immunity' under existing US law is also contained in an
earlier ICANN document. You never even engaged with this proposal, and
gave no reasons for your non-engagement either.

Perhaps you should explain why you, and others, did not support even
such a mild effort to address developing country concerns about US's
unilateral oversight of ICANN?  This despite the Civil Society Internet
Governance Caucus having adopted the position in 2005 that "ICANN will
negotiate an appropriate host country agreement to replace its
California Incorporation". Host country agreements do almost always
include jurisdictional immunity. When the crunch came -- and the issue
was officially up for 'community's decision' -- you all went against the
common adopted position of the CS-IGC... Such biased actions and
non-actions give no confidence to developing country actors -
governments and civil society organizations. 


PS: My response is already long. I will therefore come back separately
on other issues raised in your email . This includes your very
unfortunate descending to some 'dirty tricks'. But be assured that I
will respond to every single part and thing.. Right now I do not want to
take the bait and provide you the distraction you seem to be looking for.

>> parminder <parminder at itforchange.net> hat am 03.01.2022 15:55
>> geschrieben:
>> Dear Wolfgang
>> The problem is that you provide sophisticated theories, which is
>> normally a good thing, but you never respond to questions in the
>> spirit of good theorists as well as that of deliberative democracy.
>> This makes me wonder what to make of your theories, especially when
>> the questions I ask are not abstract but directly related to your own
>> actions and words at different times -- which seem to very
>> conveniently be different for very similar situations, which is never
>> good for a theorist.
>> But I will persist, and ask again. Hope you answer them this time.
>> Please see below:
>> On 03/01/22 4:39 pm, Wolfgang Kleinwächter wrote:
>>> 1+ to Olivier:
>>> There is no "ism". It is better to use language like "the
>>> multistakeholder approach". The original concept came from the WSIS
>>> 1 (2003) when two conflicting proposals for a "one stakeholder
>>> approach" (leadership) for the governing of the Internet were on the
>>> table:
>> I understand that in your country, Germany, it is the government
>> which sets and enforces all Internet/ digital policies, as it does in
>> all other areas (in howsoever a consultative manner, which btw is the
>> realm of participatory democracy and not MSism which is a direct
>> post-democratic political capture). have you called out this
>> problematic "one stakeholder approach" in your country? If not, why
>> so... Do you believe that Germany should make its Internet/ digital
>> policies with equal right to corporations as with the government?
>>> Governments (China) vs. Private Sector (US). The wisdom of the WGIG
>>> was to recognize that the Internet does not need a "leader", but the
>>> involvement of /*all* /related stakeholders (in their respective
>>> roles).
>> Is Germany's Internet governance 'the respective roles' thing or "one
>> stakeholder approach"? I will appreciate clear and direct responses .
>> Because one wants to really know what things conveniently elastic
>> concepts are meant to mean. So, please, as a good theorist, when you
>> use concepts, define them, and if possible also illustrate, including
>> with counter examples.
>> Meanwhile, I asked in another email, why, for instance, trade unions
>> (or women and farmers) are not stakeholders, as in UN systems and in
>> OECD (trade unions), and we have this industry-serving foursome
>> formula as the mantra in IG? Who decides who the relevant
>> stakeholders are?
>>> The working definition, which made its way "1to1" into the Tunis
>>> Agenda, included also the concept of "sharing". The working
>>> definition was presented as an invitation for further conceptual
>>> clarification.
>> Yes, are you happy to do a meeting on such conceptual clarification
>> -- I have been asking for it for at least 15 years.. Including above,
>> as you will see, which I am almost sure -- from long experience --
>> that you will not engage with.
>>> Unfortunately, after 2005 the WGIG concept was pulled into a
>>> senseless power struggle between "isms": Multilateralism vs.
>>> Multistakeholderism. This conflict was nonsense from the very first
>>> day.
>> Ah! Nonsense! Right .. the MSists made it nonsense.. Developing
>> countries and groups like ours supported IGF formation at WSIS when
>> developed countries, and ISOC and ICANN were firmly opposed to it.
>> Others including in civil society were happy with a capacity building
>> role for IGF, which we firmly opposed and sought a policy dialogue role.
>> Including at the UN WG on IGF Improvements, developing countries and
>> organizations like ours gave detailed proposals to further genuine
>> multistakeholder participation (with very good safeguards too) --
>> which you as a member of the group joined developed countries, tech
>> community and business to firmly oppose, whereby those could not be
>> adopted. Find enclosed the 'India proposal' in this regard, which I
>> helped develop. May I question why you did you not support this
>> effort to strengthen multistakeholder systems, and rejected it out of
>> hand, did not even negotiate with it. We had, through some hard work,
>> got almost all developing countries behind this proposal.
>> Now, I come to how these ideas, terms, etc, become nonsensical, and
>> your contribution to it.
>> First: I have often asked you this, and wont stop asking. How OECD's
>> Committee for Digital Economy Policies -- which is where globally the
>> most digital policy development work currently takes place  (and
>> wonder of wonders, none talks about -- they recently adopted a legal
>> instrument on AI governance, and are now forcing it on the whole
>> world) -- with its intergov decision making with stakeholder advisory
>> committees, and similar digital policy making systems of CoE, are
>> considered as multistakeholder? IISOC has officially called them
>> that, and you yourself participate in them -----
>> But when IBSA or India proposes the EXACT same governance model --
>> deliberately a cut-paste from OECD, the whole IG world erupts in
>> disgust over 'imposition' of multilateral-ism and governmental
>> control over the Internet, including yourself. In fact when the same
>> model was proposed by developing countries -- i have that proposal
>> too -- at the WG for enhanced cooperation too,  you rejected it in my
>> presence as anti-multistakeholderist -- joining with developing
>> countries, business and ISOC in doing so?
>> It is all this that made these ideas and concepts nonsensical -- the
>> way they were blatantly used and abused to further the incumbent
>> power of US and its allies, and their corporations.... You are right
>> there, in bearing the responsibility, for such nonsensical-isation of
>> these otherwise worthy ideas and concepts .. Which now you rue ..
>> And more recently, bringing back precisely the kind of things you
>> rejected at the IGF improvement WG through the backdoor of MAG based
>> IGF 'evolution' and now the digital cooperation thing (led by that
>> great monopolist Bill Gates, sorry his then wife, and Jack Ma, who
>> now is almost in hiding from regulatory crackdown), but shorn of the
>> safeguards we have kept in our IGF WG proposal to contain abuse by
>> corporatist power ... (happy to discuss the differences)
>> But maybe you have responses, and can show that all what I say simply
>> did not happen... eager to hear that..
>> With best personal wises, and a very happy new year, parminder
>>> The Multilateral (Intergovernmental) treaty system will not
>>> disappear or can not be substituted by multistakeholder
>>> arrangements, but it is embedded in a "multistakeholder
>>> environment". If governments ignore, what civil society, business or
>>> the technical community has to say, it won´t work. On the other
>>> hand: Non-State actors can not substitute governments. But there are
>>> possibilities for additional multistakeholder arrangements which are
>>> based on voluntary commitments (RFCs are a good example). The
>>> multistakeholder approach is a process, a "round table" discussion
>>> where wisdom emerges from an open and inclusive debate bottom up. It
>>> is an exersize of free and frank discussion where listening is
>>> sometimes more important than shouting. This goes far beyond "formal
>>> consultations" (as parliamentary hearings).
>>> This is indeed a new (political) culture which needs further
>>> conceptual and procedural clarifications. The NetMundial Statement
>>> (2014) delivered some criteria which allow a certain "measurement"
>>> for the quality of a multistakeholder process. There is no "one size
>>> fits all" multistakeholder model. How the relationship among the
>>> stakeholders in policy development and decision making is
>>> proceduraly organized, depends to a high degree from the nature of
>>> the subject. Cybersecurity needs a different governance model than
>>> digital trade or the protection of individual human rights as
>>> freedom of expression or privacy in the digital age.The IGF+ process
>>> (including the drafting of the proposed Global Digital Compact)
>>> offers an opportunity, to take the next conceptual steps. Openess,
>>> transparency, bottom up, inclusion, human rights based are good
>>> guidelines, but needs further clarification. And it needs
>>> procedures, how to move from A to B. Ther procedure which was
>>> developed within ICANN how the ICANN Board should deal with GAC
>>> advice is a good source of inspiration, how stakeholders can enhance
>>> their communication, coordination and collaboration within a
>>> multistakeholder process to produce tangible results. It is
>>> "stumbing forward" into unchartered territory.  
>>> The WGIG definition differentiated also between the */development/
>>> *and the /*use* /of the Internet, that is the Governance /*of* /the
>>> Internet and Governance /*on*/ the Internet. Governance of the
>>> Internet is described today as "Technical Internet Governance"
>>> (TIC), that is the management of a "neutral technical ressource" in
>>> the public interest of the global community. Such ressources are
>>> like "air". There is no American or Chinese air, there is clean air
>>> or polluted air. This risk in today´s geo-strategic armtwisting is,
>>> that those ressources are pulled into political conflicts with the
>>> risk to "pollute the air" (see the Russian proposal in the
>>> ITU-CWG-Internet).
>>> Wolfgang
>>> Olivier MJ Crépin-Leblond via At-Large
>>> <at-large at atlarge-lists.icann.org> hat am 03.01.2022 03:16 geschrieben:
>>>> I have real issues taking seriously people who refer to
>>>> "multistakeholderism" as an "...ism" like communism, fascism,
>>>> totalitarianism, capitalism, Buddhism, Catholicism.... There really
>>>> is not such a thing a "multistakeholderism" but perhaps
>>>> multistakeholder systems of governance. Lehto's criticism assumes
>>>> that there is a single type of multistakeholder model out there and
>>>> there really is not. Multistakeholder basically means that a
>>>> variety of multiple stakeholder sit at the decision and discussion
>>>> table, so how can one criticise it as if it was some form of
>>>> established "system" by the elites, the cabal, the illuminati?
>>>> Whatever? Or should we get back to absolute monarchy? :-)
>>>> Olivier
>>>> On 03/01/2022 01:35, Barry Shein via At-Large wrote:
>>>>> The following, in a Criticism section, was removed from the
>>>>> wikipedia's page on "Multistakeholder governance":
>>>>>   Criticism of multistakeholderism comes from Paul R. Lehto,
>>>>>   J.D.{{Citation needed|date=March 2014}}, who fears that in
>>>>>   multistakeholderism, those who would be lobbyists become
>>>>>   legislators, and nobody else has a vote. Lehto states that "In a
>>>>>   democracy, it is a scandal when lobbyists have so much influence
>>>>>   that they write the drafts of laws. But in multistakeholder
>>>>>   situations they take that scandal to a whole new level: those who
>>>>>   would be lobbyists in a democracy (corporations, experts, civil
>>>>>   society) become the legislators themselves, and dispense with all
>>>>>   public elections and not only write the laws but pass them, enforce
>>>>>   them, and in some cases even set up courts of arbitration that are
>>>>>   usually conditioned on waiving the right to go to the court system
>>>>>   set up by democracies. A vote is just a minimum requirement of
>>>>>   justice. Without a vote, law is just force inflicted by the wealthy
>>>>>   and powerful. Multistakeholderism is a coup d’etat against democracy
>>>>>   by those who would merely be lobbyists in a democratic system."
>>>>>   https://en.wikipedia.org/w/index.php?title=Multistakeholder_governance&diff=768793583&oldid=750897618
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