[CCWG-ACCT] Cruz / NTIA: Time to Get Expert Advice

Tue Sep 29 08:32:38 UTC 2015

I agree with Parminder. I oppose indulging in the flawed process of
guessing whether the US congress will accept or reject the proposal
especially since such guessing is unrelated to the 4 principles already
established by NTIA for the transition. The suggestion to take such advice
into consideration essentially means that the CCWG would be molding the
proposal to the liking of the US congress in excess of the 4 principles. If
the CCWG prefers to build a proposal in that manner, then it should be
clearly stated as a principle of the CCWG.

I suggest the following text for the principle: "The CCWG will attempt to
guess the preferences of the US Congress and present them to the world as
the will of the global multistakeholder community."

Alternatively, the decision should be solely on the merits and demerits of
the MEM and CMSM models.

The CWG (Stewardship) made exactly the same mistake when it junked the
Contract Co model in favour of the Internal/Hybrid Variant. In that group
as well, knowledgable people advised that the Contract Co model would never
fly with the US Congress; and the fear mongers built on that fear. No body
wants a year of effort to go to waste - effectively chilling substantive
discussions on merit and presenting mere guesses as the will of the global
multistakeholder community.

On Tue, Sep 29, 2015 at 1:01 PM, parminder <parminder at itforchange.net>
wrote:

>
> It is odd that advice about political reality is being sought from legal
> advisers who I think were there, as the name will indicate, for legal
> advice. Not only are lawyers not (necessarily) the best political advisers
> - in any case in this area opinions are what you mostly get from anyone
> whomsoever - it is dangerous to mix political advice with legal advice with
> regard to people specially retained to provide legal advice in a process.
> In fact the latter need to clearly know that they should only dispense
> legal advice and keep it fully free from political facts or opinions...
> Asking them for political advice is to as they say in Hindi 'strike one's
> own foot with the axe'.
>
> In this regard, I am surprised and find it, excuse me to say, almost
> scandalous that the group seem to be officially interested in knowing and
> understand the 'political reality' in Washington.... That is none of its
> business. And then, if it is indeed so politically inclined, has it ever
> tried to understand the political reality of the whole world and how US
> hegemony is not only resisted by detested all across, something which is
> being preserved in the proposed models by not touching the question of
> jurisdiction, whereas it is not at all foreclosed as per the ToR of the
> group.... When dealing with the rest of the world how is it that this group
> becomes completely technicalist and politically blindfolded? If like trying
> to learn about the political reality in Washington, if the group is in fact
> interested in learning the global political reality I can help in
> assembling an appropriate group that can advice on that.
>
> Anyway, coming to what IMHO is the highly problematic propensity that I
> see here of seeking to tune into the political reality in Washington, this
> group must understand that it is supposed to represent global public
> interest, to which alone it has to be accountable, and therefore be tuned
> to (of which it unfortunately has done a pretty bad job). And make a
> proposal within the known and published terms of reference or conditions
> under which it was set up, where nowhere I see mentioned the condition of
> keeping tuned to political realities in Washington. It has to make a
> proposal that it thinks (1) best serves global public interest and (2)
> contravenes none of the conditions that were expressly and openly
> communicated when the group was set. Catering to any other consideration,
> including and especially of Washington's sensitivity, is completely
> illegitimate. (Wonder why no lawyer tells the group that simple fact.) The
> fact that this kind of a thing can get openly discussed by an empowered
> group which is mandated with the extremely important political task of
> deciding the oversight of the technical functions related to,  and here I
> quote Edward's email, "the most powerful communication technology in human
> history'  itself shows that this process has been (deliberately?)
> constituted in a manner that while accomplishing a political function is
> rather politically blind or at least insensitive. It does not accept and
> internalise the political nature of its task and the ethos and methods
> therefore that go with public civic roles and duties. It still likes to
> treat the task largely in private law and corporate governance frameworks,
> a task which in fact is clearly of public governance and of politics.
>
> While at it I may make another point which is relatively independent. It
> is a pity how Board's resistance to the group's accountability proposal is
> now becoming a kind of a strawman that completely distracts from all the
> problems with the CCWG's current proposal itself. It has succeeded in
> giving it a kind of heroic halo which, even if I go by the numerous
> critiques in the public comments, it simply does not deserve.
>
> Hope, this is taken fully as a political comment which it is supposed to
> be and not personally by anyone (just think of a congressional/
> parliamentary debate!)... Thanks, parminder
>
>
>
> On Tuesday 29 September 2015 07:16 AM, Edward Morris wrote:
>
> Hello everybody,
>
>
> Some of the unknowns facing this group going forward are as much political
> in nature as they are substantive or procedural. Do we take the opinion and
> perspective of Senator Ted Cruz seriously? Is it a threat to the
> transition? Is there something that we can do to be responsive to the
> genuine concerns of Senator Cruz? Are his concerns genuine?
>
> What about the NTIA? The deference shown to Secretary Strickling among
> some of us here is almost Papal in nature. What did Larry say, how did
> Larry say it, what did he really mean when he said it but really didn't say
> it. It's a bit ridiculous. I admire Secretary Strickling. He's a fine civil
> servant. His published salary, though, is less than that of a first year
> associate from a decent law school at a mid sized corporate law firm. He is
> not the all mighty. Commerce and the NTIA are complex places. Larry has
> absolute control of neither.
>
> I've read here today a legal analysis of the Senator's Constitutional
> challenge by someone I know to be neither an American nor a lawyer. I can
> click both boxes and I have my views but am I sure I'm right? No. It seems
> everyone here has an opinion as to what the NTIA will or will not accept
> from us. Do any of us really know? No.
>
> Prior to the Los Angeles meeting it was suggested that we might want to
> hear from ICANN's lobbyists, that they could explain to us their version of
> political reality. We properly rejected that offer. I think we've reached
> the point, though, where we do need to call upon the expertise of
> some Washington political professionals to help guide us through this part
> of the process. No more guesswork by amateurs or  implied threats by those
> with some self-interest in the matter. We're talking about who is going to
> run a vital part of the most powerful communications technology in human
> history. We need to do this right. Fortunately, we've already retained two
> such individuals who, if we wish, have the expertise and ability to assist
> us in this area.
>
> Back in the early days of this project when we were all young, innocent
> and hopeful :)  we retained not one but two law firms to help guide us. In
> retrospect that decision and two firms we chose to hire were amongst the
> best decisions we've made in this CCWG. I have complete faith in our
> lawyers and that is a rarity for me. I note  that one of the specific
> reasons we hired Sidley was for their Washington ties and expertise. During
> our interviews with the firm we were able to meet two of their
> professionals with the greatest knowledge of DC and government operations :
> Cam Kerry ( http://www.sidley.com/people/cameron-f-kerry)  and Rick
> Boucher ( http://www.sidley.com/people/rick-boucher ). Both men were
> extremely impressive.  It is time to tap their talents. We need serious
> advice in these areas from serious professionals.
>
> I would respectfully ask our Chairs and the full CCWG to consider inviting
> either Rick or Cam to Dublin to meet with the CCWG early in the week,
> preferably during the initial F2F. I think it's important that everyone has
> a chance to question them. We need this type of policy expertise from
> a politically  astute professional who owes a duty of care  to us, no one
> else, and whose rolodex allows him or her to reach out to those whose
> decisions will most impact our work. We need to know what political reality
> is if we are to maximise our potential as a very special and unique group
> dedicated to helping create a truly open and accountable governance
> mechanism for this small part of the networked world.
>
> Thanks for considering.
>
> Best,
>
> Ed Morris
>
>
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