[NCUC-DISCUSS] Scope creep and renegade was Re: NCUC Statement on PRISM?

Tue Oct 29 00:04:27 CET 2013

This sounds like a reference to Larry Lessig's book "Code and Other Laws of
Cyberspace" but it's incomplete.  SW code is only part of one of four forms
of "code" that Larry puts forth (adapting from someone else's five-pronged
vision):

 (1) Legal Code (constitutions, statutes, regulations, treaties -- all
enforced by state coercion)

 (2) Social Code (social norms: cultural self-regulation)

 (3) Market Code (economic dynamics)

 (4) Architectural Code (physical laws of nature, terrestrial geography,
human architecture -- including software code)

They *all* play a role in constraining the range of actions of human societies.

So the answer to "code is law" is: yes, *inclusively*, but not *exclusively*.

Don't get too excited about software taking over everything, because
software itself is constrained by all the other forms of code, especially
including Legal and Market Codes.

ICANN, BTW, seems to operate a great deal on Social Code (consensus
agreements), which is the softest of them all when push comes to shove.

And have no doubt, push *will* come to shove when it really matters to the
Powers That Be.

Dan

--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.

At 5:02 PM -0500 10/28/13, Jorge Amodio wrote:
>OK I'm back in the office, and seating.
>
>Let me a story that you can research by yourself. During the Echelon days,
>do you know how many lines of code the NSA had to compromise to gain
>access to long distance microwave links in Brazil ? ... Zero ... it only
>took a corrupt enough government official and old hard cash ... so your
>"Code is Law" is not good when "Cash is King" ...
>
>Are there still corrupt government officials in Brazil (and everywhere
>else) you bet !! Do some research about all the corruption going on with
>the 2014 World Cup ... I'll give you a link for
>starters <http://www.theguardian.com/world/2012/may/15/brazil-bribery-scandal-politicians>http://www.theguardian.com/world/2012/may/15/brazil-bribery-scandal-politicians
>
>Does Brazil engages in domestic espionage ? You bet !! ...
><http://www.fidh.org/en/americas/brazil/14173-brazil-must-investigate-illegal-spying-and-infiltration-activities>http://www.fidh.org/en/americas/brazil/14173-brazil-must-investigate-illegal-spying-and-infiltration-activities
>
>
>
>-J
>
>
>
>On Mon, Oct 28, 2013 at 4:13 PM, Marc Perkel
><<mailto:marc at churchofreality.org>marc at churchofreality.org> wrote:
>
>As to enforcement I'm with EFF on the theory that "Code is Law" and that
>if we can control the protocols and if we can make the requirements for
>open source be a required policy (IE - you can't sell a router in most
>countries if not open to spyware inspection) then we can prevent nations
>from being able to break the law in the first place.
>
>
>
>On 10/28/2013 12:40 PM, Avri Doria wrote:
>
>>Hi,
>>
>>I don't go a far as some in seeing the ICANN version of the MS model as
>>necessarily fit for prime time world government.  Though I do see the
>>evolution of new multistakeholder models as producing good democratic
>>improvement to the current national and international methods of doing
>>things in the general case.
>>
>>I do however see the necessity of Internet governance not falling into
>>the control of multi-lateral groups that include nothing but the second
>>order representatives of governments that may or may not have a clue
>>about what is going on.   Mutlistakeholder governance of the Internet is
>>the best option we have for Ig in my opinion.  As far I am concerned
>>ICANN is one of the models that is currently in the crucible and I find
>>it useful both from a governance and an experimental perspective
>>
>>I am fine with the multilateral junta having an equal voice to other
>>stakeholders, but not a controlling voice or even a vetoing voice.
>>
>>As for armies to enforce the edicts of MSism:  that is what professional
>>operational staff with their 'armies' of compliance cops are supposed to
>>be for.  Normatively, we make the policy, the professional staff use them
>>to police the Internet using contractual compliance to make the Internet
>>fit for the people.  Or something like that.
>>
>>avri
>>
>>
>>On 28 Oct 2013, at 15:09, Dan Krimm wrote:
>>
>>>Using Bill's dichotomy of multi-stakeholderism versus multi-lateralism
>>>(functional representation versus geographic representation), these are in
>>>some sense two orthogonal ways to slice the pie.  There seems to be a
>>>notion among MSism advocates that MLism has been a failure and that MSism
>>>can step in to save the day.
>>>
>>>I'm highly skeptical about this.  In fact, these two dynamics exist in and
>>>around each other.  At ICANN, MLism encroaches upon MSism in the form of
>>>the GAC.  At the national/international level of MLism (and to a lesser
>>>extent at lower levels), MSism exists as "special interest lobbies."  (When
>>>I first became involved at ICANN, I was nonplussed to realize that "the
>>>lobbyists are making all the policy directly without any
>>>publicly-accountable representatives getting in the way!"  I still think
>>>there is an element of truth to this view, though I've expanded it
>>>considerably since then.)
>>>
>>>The practical difference between these two models right now is that MLists
>>>have military and economic power to enforce their desires, while MSists
>>>have voluntary good-faith consensus-building "on the honor system" to hope
>>>for agreement along the way.
>>>
>>>My gut feeling is that the MLists have viewed ICANN up until recently as a
>>>bunch of kids playing in the sandbox.  As long as nothing matters very
>>>much, they don't pay attention.  Which is why GAC is, from the GNSO PoV,
>>>such a dismal failure.
>>>
>>>But the shenanigans of GAC over the last couple years speak to growing
>>>attention of the MLists, and I think it is just the start -- a warning shot
>>>across the bow.  If they don't get their way, they will figure out new
>>>strategies to attack the MS system.  There are ample opportunities for them.
>>>
>>>Consider that root operators adhere to ICANN "rules" on a voluntary basis
>>>as a path of least resistance.  There is no military (i.e., ML regulatory)
>>>enforcement of this, just a sort of "what else is better?" attitude.
>>>
>>>FSo for example, one other point of attack for MLists would be to take
>>>control over the root servers directly with their superior tools of
>>>enforcement (ICANN doesn't have an army, though it is beginning to grow a
>>>bit in economic resources).  Then they can just ignore ICANN utterly and go
>>>on and do whatever they choose.  There are lots of ways to "route around
>>>damage" and it depends on who is doing the routing and what they consider
>>>"damage" to be.
>>>
>>>Bottom line: I don't think MSism as implemented at ICANN has any
>>>significant hope of scaling up to the level of influence that MLism has at
>>>this time.  To think that consensus can be achieved without hard
>>>enforcement is dreamy, but not realistic to me.  Stakeholders play along as
>>>long as the negotiated solution is better than any alternative.  But as
>>>soon as some alternative to negotiated solution is better, they will
>>>inevitably walk away from the table, and nobody is going to force them to
>>>come back.
>>>
>>>To think that you can govern the world without armies and national
>>>(sometimes significantly private) wealth is to ignore the realities of
>>>human nature.
>>>
>>>To endeavor to take this path at this time is really scary to me.  MSism is
>>>not at all ready for prime time.  It's just a bunch of kids playing in the
>>>sandbox, and when things get real the parents will come in and lay down the
>>>law with real enforcement.  (I know this flips some folks' ideas of kids
>>>and adults on its head: real adults rationally address consensus while kids
>>>fight over power.  But when it comes to matters of real power, adults in
>>>positions of power become kids and often don't play well together.)
>>>
>>>I'm all for trying to add MS dynamics to existing ML institutions, to
>>>increase the breadth of popular voice in the system.  But trying to take
>>>ICANN as a platform to build on is just not workable, IMHO.
>>>
>>>Institutional structures need to be built to channel human impulses in
>>>productive ways, and the structures that exist at ICANN have betrayed clear
>>>and systemic limitations. They only work to the extent that not *too* much
>>>is depending upon them.  The more serious things get, the more these
>>>structures break down, and I see this only getting worse as the things that
>>>ICANN does become increasingly important to power players outside of ICANN.
>>>
>>>Dan
>>>
>>>
>>>--
>>>Any opinions expressed in this message are those of the author alone and do
>>>not necessarily reflect any position of the author's employer.
>>>
>>>
>>>
>>>
>>>At 10:57 AM -0400 10/28/13, Avri Doria wrote:
>>>
>>>>Content-Type: multipart/signed;
>>>>boundary="Apple-Mail=_B20AE3CF-89B3-468C-8FF3-2FBC7C03CE6D";
>>>>protocol="application/pgp-signature"; micalg=pgp-sha1
>>>>
>>>>Hi,
>>>>
>>>>We will have to agree to disagree on this because I think that
>>>>multistakeholdersim builds on the other forms of democracy and is itself a
>>>>form of participatory democracy - we participate by voting in some parts,
>>>>by stakeholder participation in other parts, direct democracy (voting on
>>>>each and every issue) in yet other parts and rough consensus of
>>>>individuals in still other parts.  The multistakeholder system itself is
>>>>formed of many democratic forms and leads to a larger more inclusive
>>>>democracy.
>>>>
>>>>I see representational democracy as just one part of democracy, a critical
>>>>one, but not the entire story.  And not one that works very will in the
>>>>absence of some other forms of participatory democracy.
>>>>
>>>>For me a big part of ICANN is figuring out how to make this form of
>>>>participatory democracy work as well as possible to represent our
>>>>diversity of interests.
>>>>
>>>>avri
>>>>
>>>>On 28 Oct 2013, at 09:13, Avri Doria wrote:
>>>>
>>>>>Hi,
>>>>>
>>>>>Not all democracy involves direct representational democracy in choosing
>>>>>each person.
>>>>>
>>>>>The people in the Board who picked Fadi, were selected in various ways -
>>>>>all of which are arguably forms of democratic (se)election.  Include one
>>>>>of which who was elected by representatives we had elected. (yes in that
>>>>>case 3 of them had been selected by the Board)
>>>>>
>>>>>Participatory democracy involves many forms, some of which a
>>>>>representational voting events, some of which are nominating committee
>>>>>events and some of which require someone who was elected, appointing
>>>>>someone, who  appoints someone else.
>>>>>
>>>>>I did not elect the Supreme court justices or the Fed Chairman and yet
>>>>>they are part of democracy.
>>>>>
>>>>>For better or worse, Fadi was selected by people the community put in
>>>>>the role to do such things.
>>>>>
>>>>>As fat as I am concerned that is how representational democracty works
>>>>>
>>>>>avri
>>>>>
>>>>>
>>>>>
>>>>>On 28 Oct 2013, at 06:54, Jorge Amodio wrote:
>>>>>
>>>>>>What democracy ? I didn't vote for Fadi ... Or any of the board members
>>>>>>
>>>>>>-Jorge
>>>>>>
>>>>>>>On Oct 28, 2013, at 1:11 AM, Avri Doria
>>>>>>><mailto:avri at ella.com><avri at ella.com> wrote:
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>Hi,
>>>>>>>
>>>>>>>In my view there is no better alternative to these experiments with
>>>>>>>ever improving MSism at all level of the governance architecture.  Sure
>>>>>>>the ICANN implementation, as well as the other implementations in other
>>>>>>>I* and IGF as well as in other subject areas, need great improvement,
>>>>>>>But for now, in my opinion, the are the best approaches there are on
>>>>>>>participatory democracy governance.
>>>>>>>
>>>>>>>Of course we have to be careful what we are asking for.  And we have
>>>>>>>to be involved every step of the way.
>>>>>>>
>>>>>>>Obviously we have a different view of scope.
>>>>>>>
>>>>>>>avri
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>>On 28 Oct 2013, at 02:01, Dan Krimm wrote:
>>>>>>>>
>>>>>>>>To the extent that Fadi is trying to address Internet Governance
>>>>>>>>generally
>>>>>>>>(forgive me if I am reading too much into his actions?), that would
>>>>>>>>seem to
>>>>>>>>be out of scope, regardless of whether ICANN/IANA and general-IG both
>>>>>>>>would
>>>>>>>>benefit from internationalization.
>>>>>>>>
>>>>>>>>As for multistakeholderism, in principle this all sounds great, but in
>>>>>>>>practice it seems to have fallen far short of its intended
>>>>>>>>potential.  In
>>>>>>>>practice is where the rubber hits the road, and in practice MSism at
>>>>>>>>ICANN
>>>>>>>>has recently fallen prey to ad hoc action when some "more equal than
>>>>>>>>others" stakeholders decide the outcome is not to their liking.  They
>>>>>>>>apparently start to think along the lines of "God is not Mocked."
>>>>>>>>
>>>>>>>>I see MSism as still an experimental work-in-progress, hardly with
>>>>>>>>all the
>>>>>>>>bugs worked out, and not necessarily "ready for prime time" in terms of
>>>>>>>>overall world governance.  The only reason it has worked as free from
>>>>>>>>collapse at ICANN as it has up to now, I think, is that the big
>>>>>>>>Powers That
>>>>>>>>Be in the world (nations and big corporations) hadn't really seen
>>>>>>>>ICANN as
>>>>>>>>all that meaningful in their general scheme of things.  The more
>>>>>>>>important
>>>>>>>>ICANN's actions become, the more the big powers will pound on it to
>>>>>>>>shape
>>>>>>>>it to their desires.  I think you've only seen the bare beginning
>>>>>>>>of this
>>>>>>>>in the ad hoc shenanigans of the last few years.  Just beginning to
>>>>>>>>rev up
>>>>>>>>the engines.  MSism has not reached up out of the play-pen to play
>>>>>>>>with the
>>>>>>>>Big Boys yet, as far as I can tell, and it remains to be seen how
>>>>>>>>it will
>>>>>>>>fare if it is brought up to the Big Time.
>>>>>>>>
>>>>>>>>That's a big risk, IMHO.  Be careful what you ask for, you might
>>>>>>>>get it.
>>>>>>>>And if it doesn't turn out how you expected, what then?  This whole
>>>>>>>>MSism
>>>>>>>>experiment is a huge exercise in unintended consequences (in the gap
>>>>>>>>between theory and practice), if you ask me.  It's worth doing the
>>>>>>>>experiment, but I'd be more comfortable if the experiment were
>>>>>>>>closer to
>>>>>>>>completion before trying it out on anything *really* important.  I
>>>>>>>>don't
>>>>>>>>see it anywhere near that point, yet.
>>>>>>>>
>>>>>>>>Dan
>>>>>>>>
>>>>>>>>
>>>>>>>>--
>>>>>>>>Any opinions expressed in this message are those of the author alone
>>>>>>>>and do
>>>>>>>>not necessarily reflect any position of the author's employer.
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>At 12:59 AM -0400 10/28/13, avri doria wrote:
>>>>>>>>
>>>>>>>>>Hi,
>>>>>>>>>
>>>>>>>>>In terms of legitimacy, isn't one of the topics that needs to be
>>>>>>>>>explored
>>>>>>>>>internationalisation of ICANN, and IANA? Isn't that a topic at the
>>>>>>>>>top of
>>>>>>>>>the list? That seems to be in scope.
>>>>>>>>>
>>>>>>>>>And the ICANN Board seems to be on-board as Fadi was meeting with a
>>>>>>>>>subset
>>>>>>>>>of them (including the Chair) and AC/SO leadership every morning. I
>>>>>>>>>wasn't
>>>>>>>>>in the meetings, and don't know who the rep from gnso was since
>>>>>>>>>Jonathan
>>>>>>>>>wasn't there, so don't know what the level of buy in was, but I
>>>>>>>>>heard no
>>>>>>>>>complaints on the ground.
>>>>>>>>>
>>>>>>>>>So whatever we might say about scope creep Fadi is not being renegade.
>>>>>>>>>
>>>>>>>>>As for scope creep Fadi and the leaders of the other I* seem to be
>>>>>>>>>acting
>>>>>>>>>in coordinated faction, so it is within their scope, and would seem
>>>>>>>>>to be
>>>>>>>>>in scope for any one of them to act on I*'s behalf in organizational
>>>>>>>>>talks with governments on a meeting planning.
>>>>>>>>>
>>>>>>>>>So, in this case at least, I see no fundamental problem of
>>>>>>>>>overreach by
>>>>>>>>>Fadi.  And, whether he fully understand what it means, he seems to be
>>>>>>>>>carrying the banner of multistakeholderism into these discussions.
>>>>>>>>>
>>>>>>>>>So, at least this once, I am not ready to join in Fadi-attack.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>avri
>>>>>>>>>
>>>>>>>>>Sent from a T-Mobile 4G LTE Device
>>>>>>>>>
>>>>>>>>>_______________________________________________
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