Elections

[Robin Gross]

Cheryl,

Your unwillingness to tell us your own agenda for ICANN led me to
inquire myself.

I note your two recent submissions to the IGF detailing your proposal to
follow the example of the trademark industry and use ICANN as a
pinch-point to impose a particular set of policy values on the Internet
community.

"ICANN can: Contracts and Porn Sites"
http://www.intgovforum.org/Substantive_2nd_IGF/Cheryl%20Preston_ICANN%20Can_Contracts%20and%20Porn%20Sites.pdf

"Children and Internet Pornography: The Nature of the Problem and the
Technologies for a Solution"
http://www.intgovforum.org/Substantive_2nd_IGF/Children%20and%20Internet%20Pornography_The%20Nature%20of%20the%20Problem%20%20and%20the%20Technologies.pdf

Robin


Robin Gross wrote:

> Cheryl,
>
> I'm puzzled how you can ask us to vote for you to be our leader and
> refuse to state your policy objectives on issues the constituency
> works on.
> NCUC is made up of various organizations with a diversity of
> viewpoints that find a common constituency position for issues in the
> GNSO.  The policy positions that the constituency takes in the GNSO
> process are directly derived from the positions of the constituency's
> various individual organizations.  So we have every right to ask in
> which direction you would lead us?  And I'm concerned that you don't
> trust us enough to tell us your views.
>
> One must understand how policy is made at ICANN (with constituencies
> *taking* positions that are negotiated with other constituencies to
> reach a consensus).  So to say NCUC should be "neutral" on policy
> issues is like saying we should abdicate our responsibility in the
> GNSO to protect the interests on non-commercial users and the public
> interest.  Certainly we cannot simply leave it up to the businesses to
> work out policies that will protect consumer rights and fundamental
> freedoms as you suggest.
>
> The most significant policy issue that NCUC has been engaged in for
> the last 7 years, reform of ICANN's whois database policy (so it will
> comply with privacy laws), is up for an important vote at the LA
> meeting.  The process has been at a stalemate for years and could very
> well continue that way for years more.  This policy issue is a key
> concern for our constituency and we need to find an endgame that
> protects the privacy rights of Internet users.  Since you think the
> only requirement for leadership in NCUC is being "new", how will your
> "new" perspective lead us to a whois endgame that protects privacy?
>
> Thanks,
> Robin
>
>
>
> Cheryl Preston wrote:
>
>> I would love to talk about my ideas.  This is exactly the kind of
>> conversations we should be having.  However, I do not want strawman
>> arguments to obscure the election issues.
>> The election issue is not the ideas I have been spinning around about
>> what roles ICANN might play at some stage.  I don't think my views, in
>> any event, ought to become the objectives of NCUC.   As an ordinary
>> member of NCUC, or as a representative to the excon, either way, I would
>> hope to persuade others that NCUC ought not push for a total free
>> expression mandate until some of the issues about the Information
>> Society and appropriate ways to view the Internet are more fully
>> explored.  There have been several comments on this list that I think
>> misunderstand my views and I would like to correct.  But that is not the
>> point.
>>
>> It is not my particular view that matters.  The only election issue I
>> have raised are the 3 listed in my email regarding broader
>> representation and neutrality.  No one should be elected or not elected
>> on their personal views if we can envision the NCUC as a coalition, a
>> place for discussion, a trust to at least consider the broad range of
>> views of noncommercial issues.
>>
>> I will give you complete drafts, summaries, outlines, sources, cites,
>> etc. if you are interested, after the election.  As I said talking about
>> these possibilities maybe within the proper scope of the group's
>> process.  I may be persuaded to change my mind.  I have certainly been
>> entirely reasonable on all other issues.  In any event, my issues are
>> not the NCUC issues.
>>
>> Keep the NCUC Nuetral.
>>
>>
>> Cheryl B. Preston
>> Edwin M. Thomas
>> Professor of Law
>> J. Reuben Clark Law School
>> Brigham Young University
>> 424 JRCB
>> Provo, UT 84602
>> (801) 422-2312
>> prestonc at lawgate.byu.edu
>>
>>
>>
>>>>> Robin Gross <robin at IPJUSTICE.ORG> 10/25/2007 3:58 pm >>>
>>>>>
>>>>
>> Thanks.  I'm sure those of us in LA will be glad to see the papers.
>> For the rest of us, perhaps you could summarize on this list your
>> proposals
>>
>> for ICANN to regulate online content?
>>
>> Thank you,
>> Robin
>>
>>
>> Cheryl Preston wrote:
>>
>>
>>
>>> I have some papers that are in the editing process.  I will bring
>>>
>>
>> some
>>
>>
>>> to LA or I can just give you summaries.
>>>
>>> As I said, however, that was a point of disclosure as to my view, at
>>> least at the moment.  Maybe the new IFG is the best place to talk
>>>
>>
>> about
>>
>>
>>> some global solutions.
>>> My campaign is not to vote for me because you agree with my view on
>>> this or anything else, but because NCUC needs either to have many
>>> alternative views represented or stay out of contested politics
>>> altogether.
>>>
>>>
>>> Cheryl B. Preston
>>> Edwin M. Thomas
>>> Professor of Law
>>> J. Reuben Clark Law School
>>> Brigham Young University
>>> 424 JRCB
>>> Provo, UT 84602
>>> (801) 422-2312
>>> prestonc at lawgate.byu.edu
>>>
>>>
>>>
>>>
>>>>>> Robin Gross <robin at IPJUSTICE.ORG> 10/25/2007 11:01 am >>>
>>>>>>
>>>>>>
>>>>>
>>> Thanks for the info Cheryl.
>>> I am curious to hear more about how you envision ICANN as a place for
>>>
>>
>>
>>
>>
>>> regulating content on the Internet.  How would that work in practice?
>>>
>>> Thanks,
>>> Robin
>>>
>>>
>>> Cheryl Preston wrote:
>>>
>>>
>>>
>>>
>>>
>>>> I include here a statement of my objectives for NCUC and then a link
>>>>
>>>>
>>>
>>> to
>>>
>>>
>>>
>>>
>>>> a brief bio.
>>>>
>>>> I have worked on issues involving Internet governance and policy for
>>>> only a few years.  After looking at federal and state involvement in
>>>> Internet law, I began writing a series of papers on the history and
>>>> current position of ICANN, and its potential as an organizing force
>>>> around which a global law of Internet governance could be discussed,
>>>> considered and maintained.  When I attended my first NCUC meeting
>>>>
>>>>
>>>
>>> last
>>>
>>>
>>>
>>>
>>>> Spring in San Juan, I was presented with the "Keep the Net Neutral"
>>>> petition NCUC had drafted and sponsored.  It included a statement
>>>> charging ICANN to do everything in its power to impose an absolute
>>>>
>>>>
>>>
>>> free
>>>
>>>
>>>
>>>
>>>> expression value at every level of the DNS system.
>>>> I admit that I was rather stun
>>>>
>>>
>> ned that the NCUC was so deeply
>>
>>
>>>>
>>>>
>>>
>>> involved
>>>
>>>
>>>
>>>
>>>> in promoting a particular social, political and legal position
>>>>
>>>>
>>>
>>> regarding
>>>
>>>
>>>
>>>
>>>> the role of ICANN.  We were able to work a compromise by striking
>>>>
>>>
>> the
>>
>>
>>>> affirmative charge language in the petition, but the petition and
>>>>
>>>
>> the
>>
>>
>>>> later workshop sponsored by NCUC evidenced a clear commitment to
>>>>
>>>
>> this
>>
>>
>>>> absolutist ideological view.
>>>> After that meeting I did considerable investigation about the
>>>>
>>>
>> history
>>
>>
>>>> of the NCUC and the people who have been involved, as well as the
>>>> history and people involved in the larger sphere of those who
>>>>
>>>>
>>>
>>> advocating
>>>
>>>
>>>
>>>
>>>> this position in Internet and other policy debates.  In addition, I
>>>> spoke with my friends and colleagues who have been involved with
>>>>
>>>>
>>>
>>> other
>>>
>>>
>>>
>>>
>>>> constituency groups or with long-time players such as VeriSign.
>>>>
>>>> My personal and professional opinion with respect to ICANN and the
>>>> Internet, both nationally and globally, is very simplistically
>>>>
>>>
>> stated
>>
>>
>>>> as:
>>>>
>>>> (1) Competing values need to be appropriately balanced in this new
>>>> virtual world, just as we have strived to do in the real world in
>>>>
>>>>
>>>
>>> every
>>>
>>>
>>>
>>>
>>>> jurisprudential era;
>>>>
>>>> (2) Even the strongest forms of idealized free speech (i.e. under
>>>>
>>>
>> the
>>
>>
>>>> U.S. First Amendment) are balanced and nuanced by centuries of the
>>>>
>>>>
>>>
>>> best
>>>
>>>
>>>
>>>
>>>> legal minds;
>>>>
>>>> (3) A passionate commitment to the principle of free expression,
>>>> including the right of all people to political and subversive
>>>>
>>>
>> speech,
>>
>>
>>>> does not mean that we must abandon all forms of constraint on the
>>>> Internet;
>>>>
>>>> (4) Having a thoughtful, balanced and realistic view of what few
>>>> extreme forms of speech are more harmful than helpful does not mean
>>>>
>>>>
>>>
>>> that
>>>
>>>
>>>
>>>
>>>> next week we will construct the Chinese Wall, imprison dissidents,
>>>>
>>>
>> or
>>
>>
>>>> squelch all religious freedom;
>>>>
>>>> (5) One issue that deserves study, dialogue and exploration is if we
>>>> can and/or should look for a way to configure the technology,
>>>> traditional and nontraditional forms of regulation, and economic and
>>>> social incentives to give a choice to parents around the world who
>>>>
>>>
>> do
>>
>>
>>>> not want their children educated in sex and human relations by the
>>>>
>>>>
>>>
>>> kind
>>>
>>>
>>>
>>>
>>>> of pornography and obscenity now flooding the Internet; and
>>>> (6) It may be that ICANN might have an appropriate role in supportin
>>>>
>>>>
>>>
>>> g
>>>
>>>
>>>
>>>
>>>> any kind of eventual resolution to this problem we might someday
>>>>
>>>>
>>>
>>> devise
>>>
>>>
>>>
>>>
>>>> though the good faith dialogue of the global community.
>>>>
>>>> Yes, in short, although I agree with the extreme importance of free
>>>> expression on the Internet and elsewhere, I do not think that now,
>>>>
>>>
>> at
>>
>>
>>>> this early date in the development of the technology, law and
>>>>
>>>
>> culture
>>
>>
>>>>
>>>>
>>>
>>> of
>>>
>>>
>>>
>>>
>>>> this new information society, we should seek to bind ICANN to a
>>>> value/politics laden (and revolutionary and untried) legal position
>>>>
>>>>
>>>
>>> of
>>>
>>>
>>>
>>>
>>>> pushing for unfettered free expression at the expense of all other
>>>> values.
>>>> And, yes, I do not believe that we ought to excuse entirely ICANN
>>>>
>>>>
>>>
>>> from
>>>
>>>
>>>
>>>
>>>> the trust and stewardship it has been given over this global
>>>>
>>>
>> resource
>>
>>
>>>> created with the funds of the US public standing for themselves and
>>>>
>>>>
>>>
>>> for
>>>
>>>
>>>
>>>
>>>> all of world’s humanity of this generation and the future.
>>>>
>>>> With that disclosure on the table, my view of NCUC is:
>>>>
>>>> (1) I am confident that the handful of people who have almost
>>>> exclusively run NCUC from the beginning are honest, smart, skilled
>>>>
>>>>
>>>
>>> and
>>>
>>>
>>>
>>>
>>>> devoted.  But, I have researched to the extent I can the backgrounds
>>>>
>>>>
>>>
>>> and
>>>
>>>
>>>
>>>
>>>> views of these actors and the organizations with whom they
>>>>
>>>
>> affiliate.
>>
>>
>>>>
>>>>
>>>
>>>
>>>
>>>
>>>
>>>> These are fine organizations and I do not doubt their good faith or
>>>>
>>>>
>>>
>>> the
>>>
>>>
>>>
>>>
>>>> quality of their intellectual work.  However, they are uniformly of
>>>>
>>>
>> a
>>
>>
>>>> particular social/political v
>>>>
>>>
>> iewpoint on critical issues concerning
>>
>>
>>>>
>>>>
>>>
>>> the
>>>
>>>
>>>
>>>
>>>> Internet.  This viewpoint is not representative of the full range of
>>>> noncommercial Internet users, nor of the variety of positions and
>>>>
>>>>
>>>
>>> causes
>>>
>>>
>>>
>>>
>>>> promoted by the many nonprofit organizations focused specifically on
>>>>
>>>>
>>>
>>> the
>>>
>>>
>>>
>>>
>>>> Internet in the US - not to mention such users and organizations in
>>>>
>>>>
>>>
>>> the
>>>
>>>
>>>
>>>
>>>> wide range of countries around the globe.
>>>>
>>>> (2)  I believe that NCUC should not be an advocacy group for same
>>>>
>>>
>> the
>>
>>
>>>> reasons that the IGF has determined that their dynamic coalitions
>>>>
>>>
>> not
>>
>>
>>>>
>>>>
>>>
>>> be
>>>
>>>
>>>
>>>
>>>> advocacy groups.  Moreover, NCUC absolutely should not be used as a
>>>>
>>>>
>>>
>>> tool
>>>
>>>
>>>
>>>
>>>> for the advocacy of a single, highly contested position just because
>>>>
>>>>
>>>
>>> the
>>>
>>>
>>>
>>>
>>>> actors who became involved in the beginning (before most of the
>>>>
>>>
>> world
>>
>>
>>>> even knew there was such a thing as ICANN or NCUC) share a
>>>>
>>>
>> particular
>>
>>
>>>> view.  Nor should it be an advocacy group for my position or any
>>>>
>>>>
>>>
>>> other.
>>>
>>>
>>>
>>>> I have heard, but conducted no objective study, the opinion that the
>>>> statements coming out of the NCUC, unlike other groups, are
>>>>
>>>
>> routinely
>>
>>
>>>> dismissed as a refrain of a single, inflexible, and particularized
>>>> approach to ICANN and the Internet, which approach doesn't well
>>>> accommodate the dynamic dialogue envisioned by the multi-stakeholder
>>>> principle.
>>>>
>>>> (3)  NCUC should take seriously the trust of representing the
>>>>
>>>>
>>>
>>> interests
>>>
>>>
>>>
>>>
>>>> of noncommercial users of the Internet and make some effort to
>>>>
>>>>
>>>
>>> determine
>>>
>>>
>>>
>>>
>>>> who falls in this category of users and what these users want in
>>>>
>>>>
>>>
>>> terms
>>>
>>>
>>>
>>>
>>>> of long-term, global Internet policy.  NCUC should then study,
>>>>
>>>>
>>>
>>> consider
>>>
>>>
>>>
>>>
>>>> and discuss these interests and make representative, respectful and
>>>>
>>>>
>>>
>>> fair
>>>
>>>
>>>
>>>
>>>> suggestions to the GSNO for the betterment of the Internet.  This
>>>>
>>>>
>>>
>>> seems
>>>
>>>
>>>
>>>
>>>> to be the charge given by ICANN.
>>>>
>>>> (4) In any event and notwithstanding all three of the above, the
>>>> leadership of any group entrusted to represent a large and diverse
>>>> constituency and make, on their behalf, recommendations should be
>>>> routinely renewed and refreshed by new perspectives and approaches.
>>>>
>>>
>>> I
>>>
>>>
>>>
>>>
>>>> fully understand that involvement in ICANN is very expensive and
>>>>
>>>>
>>>
>>> almost
>>>
>>>
>>>
>>>
>>>> prohibitive for those whose employers or clients do not have the
>>>> economic stake or the resources to support the individuals doing the
>>>> work.  I agree that NCUC needs to make a case to the ICANN board
>>>>
>>>
>> why,
>>
>>
>>>>
>>>>
>>>
>>> by
>>>
>>>
>>>
>>>
>>>> definition, the "non-commercial" users cannot afford to participate
>>>>
>>>>
>>>
>>> in
>>>
>>>
>>>
>>>
>>>> the same way that the commercial constituencies can.  Thus, the
>>>> noncommercial interest group exists of record, but it cannot
>>>>
>>>
>> function
>>
>>
>>>> effectively without support.  The result of the current system is
>>>>
>>>>
>>>
>>> that
>>>
>>>
>>>
>>>
>>>> NCUC speaks only for the few such organization that, for what ever
>>>> reason, have est
>>>>
>>>>
>>>
>>> ablished relationships with businesses and
>>> individuals
>>>
>>>
>>>
>>>
>>>> with loads of disposable cash, with sufficient economic incentive to
>>>> justify supporting that particular organization, with governments,
>>>>
>>>>
>>>
>>> and
>>>
>>>
>>>
>>>
>>>> with the few universities who generously fund advocacy work.  While
>>>>
>>>
>> I
>>
>>
>>>> understand that funds are now given by ICANN to support NCUC work, I
>>>> fully understand that the ICANN support is insufficient and those
>>>> involved must be financially able to absorb the travel and time
>>>>
>>>
>> costs.
>>
>>
>>>>
>>>>
>>>
>>>
>>>
>>>
>>>
>>>> I admit readily that I do not have the hands-on experience or
>>>>
>>>>
>>>
>>> long-term
>>>
>>>
>>>
>>>
>>>> background that Robert has.  I don't suppose I am the best qualified
>>>>
>>>>
>>>
>>> or
>>>
>>>
>>>
>>>
>>>> most able person in the North American region to do this work.  I
>>>>
>>>>
>>>
>>> would
>>>
>>>
>>>
>>>
>>>> joyously vote for anyone else who wanted to do this and who could
>>>>
>>>
>> (1)
>>
>>
>>>> begin a practice
>>>>
>>>
>> of reaching out to other viewpoints; and (2) create
>>
>>
>>>>
>>>>
>>>
>>> a
>>>
>>>
>>>
>>>
>>>> pattern where new people can be given the opportunities and thus the
>>>> experience necessary for leadership - with the duty to invite, in
>>>>
>>>>
>>>
>>> turn,
>>>
>>>
>>>
>>>
>>>> new people and perspectives to work through the system.
>>>>
>>>> My basic biographical information is available at:
>>>> http://www.law.byu.edu/Law_School/Faculty_Profile?102
>>>> Please ask if you have questions.  Thank you for taking the time to
>>>> consider these recommendations and my candidacy.
>>>>
>>>> Cheryl B. Preston
>>>> Edwin M. Thomas
>>>> Professor of Law
>>>> J. Reuben Clark Law School
>>>> Brigham Young University
>>>> 424 JRCB
>>>> Provo, UT 84602
>>>> (801) 422-2312
>>>> prestonc at lawgate.byu.edu
>>>>
>>>>
>>>>
>>>>
>>>
>>
>>
>>
>>
>
>