Thanks Milton for taking the time to write this.
I support this statement personally. I also support the PC endorsing
it as an NCSG or at least NCUC Statement.
---------------------------------------
Brenden Kuerbis
Internet Governance Project
http://internetgovernance.org <http://internetgovernance.org/>
On Fri, Jan 13, 2012 at 3:08 PM, Avri Doria <[log in to unmask]
<mailto:[log in to unmask]>> wrote:
i support this statement and support the PCs endorsing it as an
NCSG or at least NCUC Statement
avri
On 13 Jan 2012, at 12:52, Milton L Mueller wrote:
Comments of Dr. Milton Mueller on the Preliminary GNSO Issue
Report on the Registrar Accreditation Agreement Amendments
As a member of the Executive Committee of the Noncommercial
Stakeholders Group, I am happy to see that the board has
recognized that these demands for changes to the RAA are important
policy issues. As such, they should be handled by the GNSO, not
through bilateral negotiations between Registrars and ICANN, and
not through unilateral dicta from the GAC and law-enforcement
agencies.
However, the value of this exercise is diminished by our
knowledge that private negotiations between registrars and ICANN
are already underway, dealing with basically the same issues. This
creates confusion and raises the danger of a lack of
representation in the evolution of a solution. The issues report
does not seem to clarify how these two processes intersect. It is
our view that the conclusions of a PDP would override any private
agreements made.
The way registrars handle the personal, financial and technical
data of their customers, and the way they interact with law
enforcement agencies, is a policy issue of the highest order. It
involves privacy and freedom of expression issues, due process
issues, as well as cyber-security and the effectiveness of
legitimate law enforcement in a globalized environment. The issue
is complicated by the fact that law enforcement from governments
anywhere in the world would be involved, and some of them are not
committed to due process, individual liberty or privacy. Even
legitimate governments can engage in illegitimate,
extra-territorial assertions of their authority or abuses of due
process. LEAs have a long history of demanding access to
information that makes their jobs easier, and this is a legitimate
concern. However, in democratic countries the demands of law
enforcement have always been constrained by the procedural and
substantive rights of individuals. ICANN must take this into account.
The demands of LEAs to make registrars collect, maintain and
validate data is reminiscent of what China and South Korea have
called a "real names" policy, which makes all participation in
Internet communication contingent upon giving government
authorities sensitive personal identification information and a
blanket authority to discontinue service should any wrongdoing be
suspected. This not only raises civil liberties issues, but places
potentially enormous cost burdens on registrars.
The concept of intermediary responsibility is being actively
debated in a number of Internet policy making forums. (E.g., see
the recent OECD report "The Role of Internet Intermediaries in
Advancing Public Policy Objectives."* A point of consensus in
this controversial topic is that any attempt to load up Internet
intermediaries (such as domain name registrars) with too many
ancillary responsibilities can stifle the innovation and growth we
have come to associate with the Internet economy. It can also
unfairly distribute the costs and burdens involved. Registrars who
are expected to react instantly to any demand that comes to them
from anyone claiming to be law enforcement will reduce their risk
and liability by acceding to what may be unjust demands and
sacrificing the rights of their users.
I and many others in the broader ICANN community were troubled
by the way in which the Board seems to have been stampeded into
RAA amendments by a few GAC members. It is important to keep in
mind that the resolutions or "decisions" made by the GAC's
governmental members are not subject to ratification by their
national legislatures, or to review by their national courts.
Thus, the GAC has no legitimacy as a policy making organ and no
authority to demand changes to the RAA. As an Advisory Committee,
they can and should make us aware of certain concerns, but they
are in no position to bypass ICANN's own policy development
processes. Furthermore, we continue to be troubled by the failure
or refusal of the law enforcement agencies making these demands to
liaise with noncommercial users or civil liberties groups.
We therefore support the initiation of a legitimate, inclusive
policy development process that includes all stakeholders,
including governments and law enforcement agencies. This kind of
balanced, multi-stakeholder process is not simply a matter of
fairness, it is eminently practical when dealing with a globalized
jurisdiction where no single government can claim to be a
legitimate representative of all the people and businesses
involved. Proposals that come from one stakeholder group are
certain to be suboptimal or harmful to other stakeholder groups.
ICANN was created to resolve these conflicts of interest in a
balanced way that includes all affected groups.
*
http://www.oecd.org/document/34/0,3746,en_2649_34223_48773090_1_1_1_1,00.html
Milton L. Mueller
Professor, Syracuse University School of Information Studies
Internet Governance Project
http://blog.internetgovernance.org