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

[David Cake]

On 29 Oct 2013, at 3:09 am, Dan Krimm <dan at musicunbound.com> 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 are multiple modes of decision making, and Multi-lateralism vs Multi-stakeholder is just one broad division.
The process (voting vs consensus, for example) is another. Open vs Transparent is another. There are others.

>  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 think rather the feeling for many is that MSism is a brave experiment that has many advantages over MLism, but that is always in danger of being overwhelmed by a return to the status quo.
Why MSism is to be preferred is perhaps something there is less unity on - for some there seems to be an opinion that MSism is something naturally suited to the governance of the Internet, for others a feeling that international governance is naturally evolving away from top down hierarchical governance, for others there is a general disdain for the hierarchical decision making processes of the Westphalian nation state. Others may just pragmatically feel it gives civil society a better voice than existing ML processes, or that it seems to be working so far so why break it. We don't need to be unified in our reasons for favouring MSism (and I think some deep divisions would be revealed if we insisted on trying to find unity. And that's fine. There are varying reasons for supporting MLism as well, from authoritarian belief in the central role of the state, to belief that it is the best hope for a strong role for representative democracy). 

> 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.

	Absolutely. The GAC is a multi-lateral body within a multi-stakeholder process. 
	Fadi made this point a few times at IGF - that neither the ITU nor ICANN follows either model purely, but in the ITU multi-stakeholder processes are subordinate to the multi-lateral, within ICANN the multi-lateral subordinate to the multi-stakeholder. 

>  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.)

	There certainly is an element of truth. But of course the balanced multi-stakeholder process ICANN uses is designed to prevent the 'putting the fox in charge of the henhouse' system becoming too problematic, by enforcing multiple stakeholder involvement (such as letting us put our, hopefully less motivated by their direct interest, civil society representative in the process), and with multiple checks and balanced to stop something sneaking through. Of course it doesn't work perfectly, but what does?
	And there is also the issue that without transparency, publicly-accountable representatives are not verifiably publicly accountable, and without high standards of transparency and openness ML processes can become corrupted by lobbying, locking some stakeholders in and some out of the process. This doesn't mean necessarily that government reps themselves are corrupt (some may be, of course, but no system can perfectly guard against that), but that processes can lock in a particular mind set about a process, and who should be involved in it. The current negotiations over the TPPA agreement, a cause of concern to many civil society organisations and activists, are an example of how a process without openness or transparency, even when run by allegedly publicly accountable representatives, can head down the path of favouring the interests of some stakeholders while locking other concerned stakeholders out of the process almost entirely. 
	And of course the opinions of many currently involved in the Internet governance participants are still heavily influenced by seeing the ITU as as the organisation that administered the centralised, highly bureaucratised, phone system (with direct involvement from the large national level telcos that ran it), a system seem as a direct technical contrast to the decentralised, agile and quickly evolving Internet. There is far more to this story (Bill, for one, knows far more about the ITU than I ever will).

> 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.

	This is not really true, IMO. It is true at the national level, but it is transnational issues that concern us. 

	It is true that states have the ability to enforce their will by force within their own national sovereignty. But when it comes to making decisions in a transnational area such as the Internet, states effectively form an anarchist community of states - most states are effectively relying on consensus building between states, with little ability to effectively enforce their will on most other states. Theorists differ on the extent to which this is true - very loosely, liberal interpretations rely on the idea of states building a consensus, realist interpretations point out that a dominant power (the hegemon) powerful enough to enforce its will (the US currently, at least for military power) has some unilateral ability to move the consensus in a direction that suits them. 

	And when it comes to economic power, of course many transnational corporations now have greater economic power than smaller states. 
	
> 
> 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.

Certainly, that is a factor. Even governments that support the GAC (Australia, for example) tend not to send the same delegates they would send to ML meetings. We get bureaucrats from the Dept of Communications or Dept of Commerce, not Foreign Affairs or the State department. And as ML processes go, the GAC is  bit of a dysfunctional sandbox, under-resourced and with clumsy processes for building real multi-lateral consensus. When it is a policy area that is relatively new to the states, we get poorly thought out somewhat ad hoc policy (like much of the Beijing process) that is acceptable to states but often poor policy, when the GAC has to deal with an area where there are strongly held, argued out over years, differing national positions (like what you are allowed to call your wine), it becomes dysfunctional and paralysed. 

>  Which is why GAC is, from the GNSO PoV,
> such a dismal failure.

	There are multiple reasons why the GAC is, from the GNSO POV, a dismal failure. But that many nations are willing to put positions in the GAC that might not be acceptable as domestic policy positions, basically due to not doing a less than thorough policy process,  is certainly one factor. 

> 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.

	Most of the GAC shenanigans are, alas, perpetrated by those nations who support it. The US likes being able to have a lot of soft power in the GAC, without having to compete directly with the vote buying of China and Russia in Multi-lateral fora - but that hasn't stopped the USG from aggressively pushing some very unfortunate GAC positions. Likewise, Australia likes the way it can, as a small nation, leverage its engaged and very informed status within the GAC (and ICANN generally) to have influence out of proportion to its size - and has been unable to resist the urge to use the GAC to push a range of somewhat poorly thought out policy positions (record number of GAC early warnings from Australia). Europe likes MSism, but has pushed hard on some poorly thought out GAC positions too (the whole 'equal treatment of trademarks can only be achieved by treating them differently' nonsense they were pushing a couple of years ago, for example). 
	The dynamic is trying to convince governments that MSism is viable (thus keeping away from a voting ML system like the ITU), by giving the GAC enough power that it still seems an attractive option to at least those governments engaged enough to participate. It is damaging to the MS model - but because they wish to weaken and suborn it, not destroy it. 

> 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.

Of course, some of those root operators actually ARE the US military, but the ones that matter for international consensus mostly are not. The root operators are a diverse bunch, and much of the stability of the current system comes from all the root operators sticking with IANA as the source for the root. But in many cases they do so more or less voluntarily, and attempts to force a change from the current status quo would be very difficult unilaterally. The ICANN L-root is clearly the most important, and control is purely contractual. That this contractual power is held unilaterally by the US is, of course, a sore point for most nations. 
And, of course, this is one reason why Fadi wants ICANN to have a legal existence that is not entirely US based. 

> 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).

ICANN also doesn't keep the L-root servers in one single nation. And is now manouevering to put the essential services it provides beyond the contractual reach of any single nation. 
It would need to be a very serious multi-lateral process to pull off taking control of the root without splitting it. There are root servers run by the US military (G Root), US corporations (A & J root), in Europe (K root), etc. 
And splitting the root would be very destructive to the current internet unless you had a very good, technically clever, plan for managing it. 

> 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.

	One could argue that, as the Internet, created and managed by bottom up, open, multi-stakeholder processes, with almost no involvement from the 'official' multi-lateral ITU,  now carries over 97% of communications traffic, that in terms of scaling up to global influence MSism is already there. 
	
>  To think that consensus can be achieved without hard
> enforcement is dreamy, but not realistic to me.

	You don't need hard enforcement - realistically, if you aren't a powerful state willing to go to war, there isn't much hard enforcement at the international level. It is all building consensus. The question is can we build an international consensus around states abiding by a Multi-Stakeholder process. 
	One thing is clear - we absolutely won't be able to do that unless governments feel that they are fully involved in a productive process, and that means working out how to involve governments in a more functional way than the GAC currently works. 

>  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.

	All solutions in an international space are negotiated. The question is, with who. 
	Ultimately, MSism survives in part while influential states like the US, major European nations, etc prefer to give civil society and commercial voices a louder voice, at the expense of nations like China and Russia (which I think is a pretty good call on their part). The current low influence of the US has precipitated a crisis in that status quo, and Brazil changing to back MSism is seen as an opportunity to salvage a good solution. 

> To think that you can govern the world without armies and national
> (sometimes significantly private) wealth is to ignore the realities of
> human nature.

	Many of the actors representing large private wealth in the Internet ecosystem have good reason to favour the MS model. Google, for example. 

> To endeavor to take this path at this time is really scary to me.  MSism is
> not at all ready for prime time.

	The engine is certainly not running too smooth. The GAC model is not working too well. We certainly shouldn't adapt it wholesale. 
	But no one is saying we should. The discussions at the IGF made it very clear that there is NO agreed upon model for what process will take on governance of 'orphan issue', and simply expanding ICANNs role is certainly not being promoted at this point. Expanding the IGF role, for example, probably has more support at this point (though it has its critics, and no one is actually sure how it would work). 
	I've also seen people discussing using OECD processes as a model to look at. 
	
> I'm all for trying to add MS dynamics to existing ML institutions, to
> increase the breadth of popular voice in the system.

	Absolutely. I don't think anyone in civil society is against that - though there are voices saying that for tactical reasons we (civil society) should only be involved in serious efforts, not token efforts for PR purposes. 

>  But trying to take
> ICANN as a platform to build on is just not workable, IMHO.

	It currently is the best we have. 
	I actually feel the GNSO process isn't awful. Its not perfect, but it seems to be in many ways (particularly openness, transparency, and ability of subject matter experts to be involved) pretty decent compared to alternatives. 
	But the GAC isn't holding up under the strain of the increased role it is demanding for itself. 

> 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.

	I see this as a reason to take reform processes within ICANN more seriously, not as a reason to give up on the ICANN model.
	It is clear that ICANN should not be pushing its current model as THE model for MSism - but it isn't. 

	Cheers

		David
> 
> 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;
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>> 
>> 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 <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
>>>>>>> 
>>>>>>> _______________________________________________
>>>>>>> Ncuc-discuss mailing list
>>>>>>> Ncuc-discuss at lists.ncuc.org
>>>>>>> http://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss
>>>>>> 
>>>>>> _______________________________________________
>>>>>> Ncuc-discuss mailing list
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>>>>> 
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