[At-Large] ICANN Accountability Mechanisms

Sun Jan 9 20:12:12 UTC 2022

This very interesting discussion has forced me to [re]read - and more
closely! - some of the documents that got mentioned here and which I read
before now.

If anything, it reinforces what I learned so many years ago as a lad from
the book analysis of George Orwel's classic, 1984. Language and its meaning
is often alchemical transmutation.

Context is and remains a pesky equal opportunity betrayer.

Thank you Parminder.

Carlton

==============================
*Carlton A Samuels*

*Mobile: 876-818-1799Strategy, Process, Governance, Assessment & Turnaround*
=============================

On Sat, Jan 8, 2022 at 5:53 AM parminder via At-Large <
at-large at atlarge-lists.icann.org> wrote:

>
> 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 below.
>
>
> 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)
> proposal
> <https://itforchange.net/sites/default/files/939/India-UN-CIRP-Proposal-at-UNGA-2011.pdf>
> 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
> <https://www.g20-insights.org/wp-content/uploads/2019/07/G20-Japan-AI-Principles.pdf>
> , 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. Thanks.
>
>
> 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 still
>
> (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
> <https://unctad.org/system/files/non-official-document/ecn162012_p12_EN.pdf>:
>
>
> "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
> <https://unctad.org/system/files/official-document/WGEC2016-2018_m4_CompRecom_en.pdf>
> and here
> <https://unctad.org/system/files/official-document/WGEC_Summary_of_Responses.pdf>
> 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
> <https://en.wikipedia.org/wiki/International_Organizations_Immunities_Act>,
> 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.
>
> Regards,
> Parminder
>
>
> 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> <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>
> <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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