At Large White Paper

[Milton L Mueller]

> -----Original Message-----
> 
> 
> Ithink most everyone can recognize that  the strict direemption of the
> Council and the Houses was a really bad idea.  
 
[Milton L Mueller] I don't agree. Even though I am not sure what "direemption" is.... 
The problems of the GNSO are manifold, but none of them that I can see are related to the balancing act involving the Houses. 

> I think we see stakeholders who want to be involved but can't be
> involved because their don't fit the US vs. THEM divisions.  I think we
> see attempts to shoehorn new stakeholders into groups that don't really
> fit.

[Milton L Mueller] true. But this is for political reasons, i.e., BC/IPC don't want new constituencies in CSG and they want to further dilute NCSG by throwing new constituencies at us. This kind of game will continue - or get worse - as long as the representational structure is unstable.

> We have inconsistent application for the Constituency/Stakeholder
> mandate from the Board.

[Milton L Mueller] Not sure what you mean by this.

>  In the contracted house, we see a situation
> where soon, just about every company will belong in the two of the
> Stakeholder groups, so subsidiaries will join different Stakeholder
> groups.

[Milton L Mueller] True. So what? 

  In the NonContracted parties house, we have to recognize that
> the world is not strictly divided between the Non-Commercial and
> Commercial and there are Registrant/User groups that have both aspects,
> and that there are a variety of technical stakeholders who need a varied
> representation model.  

[Milton L Mueller] disagree. 
[Milton L Mueller] Basically you, and many people in ICANN, are spending an inordinate amount of time chasing after the chimerical idea that some kind of perfect representational structure can be frozen into place and will perfectly correspond to everyone's identity. Stop chasing that ideal, it will never be found, any more than you will find the end of the rainbow. 

What we need is simple: A basic balance of power/interests among industry suppliers, trademark/brand interests and noncommercial users. 
One of the biggest problems with the current structure is the idea that new constituencies - and thus new power centers and resource demands - can be created at any time. We already know that this is a never-ending source of political gamesmanship and until and unless it stops, we will have to pay great attention to this internal stuff instead of actually developing policies. 

The other big problem with GNSO is that the Board does not respect, and the GAC does not respect, it as the "bottom" in the bottom up policy development process. That is a problem that dwarfs all the others. Until that changes, the representational structure of the GNSO is really a minor, secondary issue.


> Mostly we have to review the notion of the regulated having an effective
> veto in regard to  their regulations.  I am well aware that this is a
> vestige of regulation by contract and the nature of picket fence, but
> once we realize that these contracts are not regular contracts but are a
> form of regulation, it becomes less obvious that Contracted Parties
> should have an effective veto over changes to the regulations.  A fully
> participatory set of roles and responsibilities, certainly, but not a
> veto.  Until that gets fixed, ICANN remains vulnerable to calls of CoI
> and malfeasance.

[Milton L Mueller] These are good points, I may not agree with all of them but it is a conversation we need to have. However, it pertais to the constitution of ICANN and thus is way beyond our remit as NCSG or even GNSO. I will set this one aside for another day, another forum.
 
> I think that if ICANN is a new form of multistakeholder regulatory
> organization, it should have something to say about the ccTLDs.  It is
> ridiculous that ccTLDs are not  bound by a  same basic rules as the
> gTLDs.  Sure issues of administration have a sovereign aspect to them,
> but the basic registrant and user protection should be equivalent.  I
> admit I have more sympathy for the ccTLD that focuses on their country,
> and perhaps its diaspora, than I do for those who walk and quack as
> though they were gTLDs, except for when it comes to responsibilities
> including registrant and user protection.  I understand that this is
> linked to the nature of ICANN as an organization subject to California
> law.  I have argued and keep arguing for progress on the evolution of
> becoming a free standing organization, with appropriate multistakeholder
> oversight, that is hosted by a country without being subject to its
> political whims.  I think  it is important that all TLDs have a similar
> basic regulatory aspect.

[Milton L Mueller] same as above. Too big an issue for this forum. And the politics that produced the current equilibrium are unlikely to change. 
Furthermore, I am not sure it is an improvement to create a centralized form of regulation that applies to ALL TLDs, rather than just to gTLDs. At the current moment I view ccTLDs as basically outside the regime, and that is basically a GOOD thing, though I agree with Avri that many ccTLDs play both sides of the fence. 
 
> I was on the committee that produced this dog's breakfast of a GNSO
> organizational modality.  As is too often the case, I was the only
> dissenting voice. In the end I only agreed to stop fighting about it
> because it could be undone a few years later if the experiment failed.
> It failed.  It is time to undo it.  I think the contributions from R3
> should, and will, be fed into the analysis that is done on the upcoming
> GNSO review.

[Milton L Mueller] what failed, exactly? 
What is your criterion for determining success or failure? 
I bet you an expensive cocktail at an overpriced ICANN hotel that you cannot define such a criterion without invoking the process failures (e.g., IOC/RC re-dos, GAC overrides, etc.) that have absolutely nothing to do with the GNSO's organizational modality.

--MM