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

[Eric Brunner-Williams]

On 12/18/14 2:09 PM, Greg Shatan wrote:
> 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.)?

Starting at "Or is your point ..." Yes.

> 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."

I don't know if you recall the discussion between Jeff Neuman and 
Bertrand de la Chapelle -- if I recall correctly -- at the Paris meeting 
-- it was the first of those awkard "facilitated conversations" with 
colored bits of paper for the rest of us to indicate our responses to 
the theses of Jeff and Bertrand. They talked to, and past, each other, 
attempting to make cases for what "the public interest" might be. To my 
mind the enduring value of that moment (and others later in policy 
development contexts) was the demonstration that what we mean by "public 
interest" is determined by our social expectations -- as residents of 
France (and Europe) and as residents of the United States (and North 
America).

If we are to "clarify the concept" I suspect that starting with explicit 
questions like "should we extend IDN to meet the requirements for lesser 
known languages?" or "should we promote registrar and registry 
formations in developing economies?" will be useful -- questions rather 
remote from "applicable law".

These two example questions, to be sure, are outside of the remit of the 
CCWG, but if we are to detour to define or clarify "public interest", 
the details will be important.

Regards,
Eric Brunner-Williams
Eugene, Oregon