[CCWG-Accountability] Related work on ICANN's Public Interest

[Greg Shatan]

Eric,

I'm not sure why you appear to be limiting your inquiry to the "technical
coordination of unique endpoint identifiers" and the IANA Function,
narrowly construed.  Or is your point that from that fairly narrow set of
tasks, a broad variety of developments, innovations and other consequences
have flowed, hopefully in the public interest (but certainly affecting the
public interest.)?

On a separate note, the way I look at the whole "applicable law" point is
that ICANN (like any person or entity) should be expected to act within the
laws applicable to it.  To put it another way, they shouldn't break the
law.  There is some validity to Dr. Lisse's point that this is both vague
and self-evident, but it gives folks some comfort to say it in things like
Articles of Incorporation (indeed, there's a certain level of requirement
for statements like that in documents like that).  The linkage between
acting in the "public interest" and not breaking the law is somewhat
cloudy.  Many corporations (and people) do the latter without doing the
former.  And sometimes (e.g., the Pentagon Papers or (arguably, to some)
Edward Snowden) do the former while failing to do the latter.

In any event, I do think there is some value in clarifying the concept of
"public interest" in the context of ICANN, but I am not seeing the value in
trying to create a linkage between that concept and the concept of
"applicable law."

Greg Shatan

*Gregory S. Shatan **|* *Abelman Frayne & Schwab*

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On Thu, Dec 18, 2014 at 2:54 PM, Eric Brunner-Williams <
ebw at abenaki.wabanaki.net> wrote:
>
> Malcolm,
>
> Earlier, you (and several others) offered several phrases containing some
> qualifier and the word "law" as useful language to add.
>
> My first point was to illustrate that neither "law" nor "contract" have
> much bearing on the set of activities usually referred to as the technical
> coordination of unique endpoint identifiers. Dr. Lisse made much the same
> point as did anyone else asking "which law?", and by now you've had a
> chance to see Becky Burr's comment.
>
> My second point, which I think you've missed or I expressed poorly, is
> that when we construe the IANA Function very narrowly, and informed only by
> the commentary of the IAB, e.g., RFC 2826, historically significant and
> broad reaching "public interest" consequences follow. Scripts other than
> Latin now form DNS labels throughout the namespaces, addresses are
> allocated according to some forms of equity of access, etc.
>
> Restated, the mere stewardship of unique endpoint identifiers and protocol
> parameters entails a significant public interest capability, and
> responsibility. This was true prior to 1998 when Dr. Postel held most the
> responsibility personally, and remains true after 1998 when these
> responsibilities began a process of institutionalization.
>
> I hope this clarifies my earlier note.
>
> Regards,
> Eric Brunner-Williams
> Eugene, Oregon
>
> On 12/18/14 2:35 AM, Malcolm Hutty wrote:
>
>> On 2014-12-17 21:20, Eric Brunner-Williams wrote:
>>
>>> On 12/17/14 8:53 AM, Malcolm Hutty wrote:
>>>
>>>> Certainly I would regard it as being in the public interest that ICANN
>>>> should discharge its functions properly, and in accordance with
>>>> generally
>>>> accepted principles of law.
>>>>
>>>
>>> Dear Malcolm,
>>>
>>> What "generally accepted principles of law" do you suggest apply to
>>> the management of protocol parameters?
>>>
>>
>> [snip: other similar questions, that ultimately lead to:]
>>
>>
>>> My point being that when the IANA Functions are as narrowly construed
>>> as we can sensibly make them, "public interest" and "generally
>>> accepted principles of law" are difficult to find points of
>>> association, let alone concordance.
>>>
>>
>> Eric,
>>
>> I'm a bit surprised by the tone of your reply, which appears to signal a
>> disagreement between us that I don't recognise in the argument itself.
>>
>> The main thrust of my intervention was to say that we should not make
>> broad
>> statements about the public interest and "generally accepted principles
>> of international law" that could be construed to enlarge ICANN's role.
>>
>> Your intervention seems to be aligned with this.
>>
>> I am not a PIL expert, so I cannot guess what principles of PIL may be
>> applicable to ICANN. There certainly are broad principles that I do
>> believe are applicable to ICANN (including transparency, a rules-based
>> approach,
>> bottom-up multi-stakeholder policy-making, impartiality of treatment
>> under the rules etc); some of these may be found in PIL too, or maybe not,
>> I don't know.
>>
>> I do believe ICANN should apply only aspects of PIL as relevant
>> to its existing mission, rather than reshaping its mission to pursue
>> the multifarious goals of international public policy. On this may
>> I take it we are agreed?
>>
>> Malcolm
>>
>>
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