[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Sat Jul 9 14:11:43 UTC 2016

Quoting from the the text of the Draft ICANN's Articles of Incorporation

    "“the Corporation shall, except as limited by Article 5 hereof,
    pursue the charitable and public purposes of lessening the burdens
    of government and promoting the global public interest in the
    operational stability of the Internet as such global public interest
    may be determined from time to time by the multistakeholder
    community through an inclusive bottom-up multistakeholder community
    process, by carrying out the mission set forth in the bylaws of the
    Corporation (“Bylaws”).”

Public interest, in contemporary times of normative dominance of
democracy, is democratically determined..

ICANN's prosed AoC by saying that in relations to ICANN's areas of
competence, it "will be determined through an inclusive bottom-up,
multistakeholder community process" (with the word "democratic"
conspicuously absent) is setting up a new political paradigm, which I
consider is post-democratic.

While democracy admits only natural human beings, and their collectives,
as bearer of political rights and legitimacy, and thus included in
process of determining public interest, the main innovation of
'multistakeholder process' or multistakeholderism is to give corporates
an equal voice as people. Developing this new post-democratic political
paradigm is playing with fire. I hope democratic minded people here
realise it.

In the US, where the Supreme court decision, in Citizen United, gave
political rights to corporation similar to that of natural persons,
today, according to a 2015 Bloomberg poll, nationwide, 80 percent of
Republicans and 83 percent of Democrats oppose /Citizens United/. It
seems that 17 states in the US have already called for upturning this
judgement. Recent is a bipartisan majority of New York Senate and
Assembly calling for constitutional amendment to achieve this.
Significantly, letters from both partiesassert that
<http://www.yesmagazine.org/people-power/in-new-york-republicans-and-democrats-join-forces-to-overturn-citizens-united-20160629>
corporations “are not entitled to the same rights and protections as
natural persons under the Constitution..."

A multistakeholder process, on the other hand, precisely does that, give
corporations the same political rights as natural people (it is in fact
the primary purpose of multistakeholderism as applied beyond technical
management to public policy or "public interest determining" processes).
This is even more so when the term "democratic" is glaring absent form
the description of the process of determining global public interest.

My question is: why cannot we add "democratic" to the description of the
process, and make it "global public interest will be determined by
bottom-up democratic multistakeholder community processes" ? "Democratic
multistakeholder" is also the term used in Net Mundial Statement.

Multistakeholder processes are fine for technical management, and for
determining technical policies, but not for determining "public
interest" which is the same as laying "public policy", which is simply
operationalisation of the "determined public interest" in specific ways.
Public interest and public policy can only be democratically determined,
while, admittedly, specific processes and means of such democratic
determination will vary (and can never be perfect). But the name and
normative description of these processes must remain democratic, which
then tells us to what normative standards it aspires, and can be
expected to move towards.

To repeat, I find it an extremely dangerous precedent, in fact a
political innovation, to lay out that public interest and public policy
will be determined in ways that are not democratic, but where
corporations have political rights similar to natural persons, which is
what a multistakeholder process, or multistakeholderism is about.

I do hope that at least democratically inclined civil society groups,
and governments, will not approve of such post-democratic political
innovations.

parminder

On Saturday 09 July 2016 02:20 PM, Schweighofer Erich wrote:
>
> ICANN cannot determine the Global Public Interest alone, that is the
> work of the international law community world-wide, taking into
> account present methodology for developing customary international
> law. I am working on a study on that because I find this concept
> strong enough to act as a mediator between so different interests of
> international community in its now different forms – states, civil
> society,  business etc. but also takes into account present major
> stakeholders like state or inter-governmental international
> organisations. In my humble opinion, it is the phrase for respect of
> international law for new international actors on the global plane
> like ICANN. Besides the regulatory concept of this term, the other
> elements of adjudication and enforcement should be not forgotten.
>
> Best,
>
> Erich Schweighofer
>
>  
>
> *Von:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *Im Auftrag
> von *Mueller, Milton L
> *Gesendet:* Samstag, 09. Juli 2016 05:15
> *An:* Greg Shatan; Aikman-Scalese, Anne
> *Cc:* Thomas Rickert; Accountability Cross Community
> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for
> Public Consultation on Articles of Incorporation (AOC)
>
>  
>
>  
>
>  
>
> There is no requirement in the revised Bylaws that the Global Public
> Interest be determined, or that such a determination is needed (or
> even desirable) for ICANN (the Board, the Corporation and/or the
> Community) to make decisions..
>
>  
>
> There is a requirement that /if/ the Global Public Interest is
> determined, it will be done by the multistakeholder community through
> an inclusive bottom-up multistakeholder community process.
>
>  
>
> MM: Agreed.
>
>  
>
> a determination of the "public interest."  ICANN is no exception.  The
> "Global Public Interest" standard has been in ICANN's Bylaws since the
> beginning; this is nothingnew
>
>  
>
> MM: No, it hasn’t. Check if you wish:
> https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en
>
> ICANN was incorporated as a California “public benefit corporation”
> (i.e., a nonprofit) but the “global public interest” standard is quite
> new and those of us with knowledge of history of utility regulation in
> the U.S. understand where a public interest standard comes from and
> what are its implications (basically, blanket grant of authority to
> determine what is good for us). Most of us don’t want ICANN to have
> that power. Some people still can’t cough out an acknowledgment that
> ICANN is a regulator.
>
>  
>
> Dr. Milton L. Mueller
>
> Professor, School of Public Policy
>
> Georgia Institute of Technology
>
>  
>
>  
>
>  
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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