The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record.
***
>> WILLIAM DRAKE: I will be speaking today in Chicagoese. Probably English or something close to it.
Okay.
Good afternoon everyone. My name is William Drake. I teach at the University of Zurich and I'm also the outgoing Chair of the noncommercial users constituency in ICANN, which is a Civil Society network involved in ICANN policy.
This is the workshop 52. The global public interest in critical Internet resources. And we are going to run this session as an interactive roundtable, rather than as a series of talking heads. I will give the details on that in a second.
But just I wanted to let you know at the front end, there is going to be time for participation by everybody in the room. So we are not going to -- this is not going to be one of the sessions where you don't get to speak. So what is this about? Well, here is a little puzzle. The draft outcome document for the WSIS+10 review says that we recognize the Internet is a global resource that must be managed in an open and inclusive manner which serves the public interest. The NETmundial multistakeholder statement from last year says the Internet is a global resource which should be managed in the public interest. Resolutions appended to the ITU's court treaties say that IP-based networks must be interoperable and operated in the global public interest, and that Governments must have a clear legal framework to ensure the protection of public interests in the management of the Internet resource, including domain names and addresses.
ICANN's bylaw and the affirmation of commitments employ the term three and five times respectively. ICANN's Government advisory Committee has invoked the term to justify many of its positions, and applicants for new gTLDs are asked to undertake public interest commitments.
But what does the public interest really mean with respect to critical Internet resources? There has been no critical open global discussion about that question. It's not at all clear what is the standard that we are all saying Internet governance should be following at the global level, particularly with respect to the underlying critical Internet resources, name, numbers, security issues, interoperable, and so on.
ICANN's new Strategic Plan prioritizes developing a "common consensus based definition of the public interest for ICANN," and we have been having, within ICANN, some discussions now at various levels of intensity for the past half year around exactly what this might mean. And staff are doing some work on it. And over the next half a year or so, there will be an effort to roll out a broader integrative dialog within the ICANN community on this. But nevertheless, there is a lot there that is not very clear, exactly how one proceeds. And that is only within ICANN.
So it seemed to me, you know, that there is a need for a broader parallel discussion outside the ICANN environment that includes more kinds of people from different backgrounds. And the IGF seemed a perfect setting for this. So what we're going to do today is have a roundtable discussion on this, with some people who have very substantial multidimensional biographies online, so I'll not read them. But they are all leading voices in this space. Gathered around the table I see Rinalia Abdul Rahim from Compass Rose in Malaysia and also a member of the ICANN board.
Jari Arkko, who is the Chair of the Internet Engineering Task Force from Finland.
Olga Cavalli, from the Argentinan Government and Internet Society of Argentina over here.
Anriette Esterhutsen, the Associate Director of Association for Progressive Communications from South Africa.
Over here, Jeanette Hofmann from the Humboldt Institute of Internet and Society in Germany.
Wolfgang Kleinwachter, who is the Director of the European summer school on Internet Governance in Germany. And former member of the ICANN board here.
Marilia Maciel, from the Rio de Janeiro law school, Getulio Foundation.
Nii Quaynor, from the University of Cape Coast in Ghana, and formerly -- almost everybody here has been on the ICANN board. I'm the only one who hasn't. You haven't but we will get you.
George Sadowsky also on the ICANN board over here.
Over here we have Assistant Secretary, Department of Commerce, Larry Strickling from the US Government.
Thomas Schneider, from the Government of Switzerland and also the Chair of ICANN's Government Advisory Committee.
And down here, who did I skip so far, Nigel is from the ICANN staff, and Jandyr Santos from the Foreign Ministry of Brazil. I think we are missing Vint Cerf, but otherwise we have everybody who wanted to be part of this discussion.
So what we will be doing then is, as I say, running this as an interactive roundtable. I shared with the participants in advance some questions and we discussed how we might want to modify and add to them, so that everybody has some idea of exactly what is going to be coming.
We're going to limit our comments on each round to two minutes. Please. So that we're able to go around all the questions, we have like five or six little areas we want to explore. And then we will open it up hopefully by about halfway through to the entire room.
Before doing that, though, I'd like to start out with Jeanette Hofmann. She kindly offered to give us a little update on some of the current research that has been done in the academic setting around public interest issues. This could help to orient our thinking at the outset. So, Jeanette, if could you do that for five minutes, that would be great.
>> JEANETTE HOFMANN: Certainly not more. Thank you so much, Bill. I thought it would be quite good to talk about the term as such, because in the context of Internet Governance, many people are now of the impression that the term "Public interest" can mean anything and nothing. And I think that is a bit exaggerated, and it is indeed possible to narrow the meaning down a bit. So that's what my research tried to do.
First, the term "Public interest," it occurs always in the context of Regulation. Public interest refers to public Regulation. And there are a few things that are worth mentioning in that context. One is that public interest, particularly in the Angelo American word, is tied to the idea that public interest Regulations should be free of or prevent regulatory capture. The main thing is that public interest Regulation should not privilege specific interests at the expense of others. So it is a term against something, and that something is "Capture." A topic that is quite popular in the Internet Governance world, too.
Public interest, one could define it as a regulatory idea. Regulatory idea is that it is never something that is so concrete that you could achieve it and take it off and carry on to the next go. It's something far at the horizon that you strive for but that you rarely ever implement it to a degree that you think yes, that is public interest regulation. In that respect, it is more an abstract idea than something really specific.
Public interest ideas thus suggest a benchmark, something you want to achieve or you want to assess the regulation that you have against that goal.
Now, one of the problems with public interest is that it's interpreted in many different ways. Some people think that "public interest" means economically the most efficient solution, that you can sort of define public interest in check terms. Others, again, interpret "Public interest" in a broader sense, and include normative or political goals. Examples for these political goals would be social justice, redistribution, reduction of social inequality, preventing harm to future generations were thought to be political goals, to be achieved through a public interest regulation.
There is no point in even going down that road and trying to sort of discuss whether one interpretation or the other one is the correct one. I think it is much more interesting to look at the conditions of how you actually get to public interest regulation. And I think it is in this area that the critical Internet resource management really overlaps with this discussion.
The simple version in terms of conditions for public interest regulation is that you achieve it through the deliberative process that allows everyone likely to be affected by it to have a voice in its formation. So it's defined as: Let everybody have a say and then consider, and that is then public interest.
Others have dismissed this notion of "public interest" as very naive. And those who say this is naive say that there are at least two concerns -- two conditions that need to be met. One is, indeed, the process one. And the other one is to look at what they call the demand side. And that is a public concern, a really strong concern, interests in that matter and expertise at the table. These are two conditions that need to be met. One is due process and the other one is an active social demand. And that social would cover both public and private demands for public interest regulation.
So coming back to the first point that public interest regulation is trying to prevent capture, these two conditions are important in their combination. There can be due process and still capture. And that would occur when, say, private interests are so massively represented that other concerns are not heard. Or when NGOs, for example, lack the means to make themselves heard or even form an opinion on issues. So it's a matter of how these two conditions are brought to the table.
And here we see a clear connection to the multistakeholder approaches. We can ask ourselves do multistakeholder approaches as we implement them right now fulfill these two conditions, or do we need to fear that they are actually pro-capture by privileging one side or one specific position in a matter?
So thank you very much.
>> WILLIAM DRAKE: Excellent. That's very helpful, Jeanette. Thank you for putting that on the table.
So there are several things that she said there that I think are especially relevant, and the one that I liked the most was that it was a sort of ideal towards which you strive but never quite arrive. I think in the ICANN world that is very familiar to many of us.
So let me start with one of the questions that I shared with colleagues, and I'd like to in particular ask some of the folks who are not from the US if they might have a thought about this. So the concept of the public interest has a long pedigree in some countries, as Jeanette indicated, and for example in the United States, you know, it has been an overarching principle of telecommunications and mass media regulation and policy since the early 20th century. Nevertheless, its precise meaning has been debated ever since. Nobody has gotten around to agreeing to exactly what it means, but it's fundamental to US laws.
I'm curious, where else around the world the terminology or similar formulations were employed, generally or specifically with regard to communications information? Is this just an Angelo American concept or do we have cognate terms in Brazil, in Ghana, in Argentina, in Finland and Germany Switzerland, Malaysia?
Olga Cavalli from Argentina.
>> OLGA CAVALLI: Thank you very much for the invitation. We have a big audience and fantastic colleagues sharing their thoughts with us. Thank you, Jeanette. It was helpful and thank you for the notes that you sent me. It will be useful for us.
We have been discussing this in ICANN because of several things that are namely related with public interest, but we have this aspirational idea of public interest in the horizon; I love that.
I would say that the idea of public interest is very strongly related with an equal access to different things which are essential for the community, for the people, like social justice, as Jeanette mentioned, education.
In relation with ICTs, I would say that for access to connectivity, to Internet access, to health, to water. And it's related to preserving things that are important to the community and for the people, like places and different archeological places that should be preserved, items or cultural names, names of regions, names of different -- which are relevant for industries.
So that also has an impact from the economic side. But are mainly related with the social aspect and the community aspect of -- with the cultural heritage and also the social demand, as Jeanette mentioned.
So mainly it's not so much oriented towards private ideas, but it's mainly related with social equal access to different things, and preservation of those cultural or community things.
Thank you.
>> WILLIAM DRAKE: Is this embodied in laws and regulations both?
>> OLGA CAVALLI: It depends. We should go into detail with that, but we don't have time. So yes, thank you.
>> WILLIAM DRAKE: Yes, Thomas.
>> THOMAS SCHNEIDER: Thank you. Maybe, quickly, in Switzerland or in German speaking countries, but I think that goes for more or less all European countries, there is a similar notion that goes back to the Greeks and the Polis and the idea that you are only happy if you look for yourself but also for the commonality. And the German word Gemeinwesen is about Commonwealth. It's what we call Commonwealth or a common interest. But it's about everybody together in addition to everybody for himself. And it's similar to what Jeanette has said. There are some that think you can define in substance what that is once and for eternity. Others say it's for the process of defining a Commonwealth in a particular time, in a particular framework and society. And there is an iterative process that will adapt what is considered common over time. And I'm a lawyer. It's purposefully not very precisely defined as a term, but it's used in the context of who is benefitting. If you look at who is losing and how do you balance the different wins or losses or interests, that may be contradictory. But it's the basis of the political thoughts in my country.
>> WILLIAM DRAKE: It's more than the aggregate of individual interests. It's beyond that.
>> ANRIETTE ESTERHUYSEN: Thanks for that brilliant introduction, Jeanette. I would say speaking from the South African perspective, and maybe more broadly from other countries in Africa, but other speakers, too, there is not just contestation about what it means but also about who has the entitlement to be the defenders of the public interest. And I think what we see increasingly is States claiming that responsibility and being quite defensive in certain instances when other actors, when nongovernmental actors claim that entitlement to also be defending the public interest. And this happens when there is contestation about whether the public interest is being defended or not.
And I think that then also plays itself out as more demand for multistakeholder and public participation evolves. And I think that is actually why it is so important that we are having this discussion around Internet Governance, because I think we see some of the same tensions playing themselves out.
>> WILLIAM DRAKE: But you're speaking more generally and not to the South African context.
>> ANRIETTE ESTERHUYSEN: No. I'm speaking about the South African context as well. Because what you have is a state that believes it is doing its best to defend the public interest, and then you have communities and people and populations who feel that they're not. And so it becomes not just contestation about what the public interest is, but about whose responsibility it is to be speaking out about whether it's being protected or not.
>> WILLIAM DRAKE: I don't mean to be boring, but you use the term?
>> ANRIETTE ESTERHUYSEN: We use the term.
>> NIGEL HICKSON: From a UK perspective, it's fundamental from a civil servant. One is always asked to justify any policy decision, any proposal for legislation. Was it in the public interest? That was the question that was asked. That was always one of the criteria you had to meet and you had to explain why policies and legislation were in the public interest. And that's why I think it's one of these terms that is incredibly difficult to define in a general concept. I mean, I think one can start to define it in terms of an organization or in terms of a particular issue. But defining it generally.
And just to pick out what was said, certainly in the UK case and as a Commonwealth approach to this, public interest has been used by politicians. I mean, once you introduced the policy and you said it's in the public interest, the politicians say well it's in the public interest because it's in the public interest. Over the debate over surveillance or anything like that, the Government will say something is in the public interest. There is a public interest not to look at people's data, if you like. But there is also a public interest to protect people from terrorism or whatever.
So public interest is used in many different scenarios.
>> WILLIAM DRAKE: Okay. Thank you.
Marilia Maciel.
>> MARILIA MACIEL: Thank you, Bill.
In Brazil the notion of public interest is present in the Constitution in different articles. There are some rights, for example, that could be mitigated in the face of the public interest, such as the right to private property, for instance. It's also present in a lot of the telecommunications. So the deployment of telecommunications should serve in the public interest. And that's where we drive the notion of universal service from. But I think the national examples are interesting. But I believe that we have a very interesting document in which we could anchor the discussion of public interest in Internet Governance, which is a document that we all agreed when we came together in the face of Snowden revolations and unilateral measures, and it represents a renewal of interest and a renewal of our desire to work together, which is the NETmundial multistakeholder outcome document.
If you think about the three points made before, to prevent capture, we use that over and over. They are very important principles there that relate to Internet governance processes that would help us prevent the ecosystem from capture. If you think about regulatory ideas, we have very good ones that are related to human rights that could be the base of many things that we are developing not only in ICANN, when we discuss human rights in that scope, but also here. If you think about political goals, we have prevention of inequality, how to make actors participate more equally. And there are critical resources, when we were discussing the shaping of this discussion, and raised the point of how this could be interconnected and stable and reliable. And this is all the NETmundial document. I think it dialogs with the definition that came from the strategy panel and sponsored by ICANN that you mentioned in the beginning. So this document is a convergence of many ideas that were mentioned with regards to the idea of public interest with the addition that this document has been discussed and framed by all of us. So it the has legitimacy behind it. So if you want to anchor with something, this is a very interesting document to anchor or discuss.
>> WILLIAM DRAKE: Let's take one more, then I'll move on.
>> RINALIA ABDUL RAHIM: I think I'll get into trouble with my Government for what I'm about to say. The notion of public interest exists in Malaysia, especially along the development lines and values that Olga highlighted earlier. The term is not familiar. If you translate "public" interest," it doesn't translate in our language, just like "Internet governance" and "multistakeholder" is difficult to understand. So I just wanted to flag that aspect of that.
>> WILLIAM DRAKE: It's an interesting thing that we struggled with ten years ago when we tried to define "Internet governance," and nobody could figure out how to translate in Spanish. The notion of "governance" didn't quite connect.
So the term is used broadly in a number of countries and different political situations and it's part of the shared common background. And yet, people were citing quite a lot of different things as being consistent with the public interest. Olga mentioned cultural rights and access to water and things like that. There are many different elements that different people view as being consistent with this.
So let's try to hone in then a little bit with respect to what might be relevant specifically to critical Internet resources.
In terms of telecommunications and broadcasting policy, traditional kind of focii for public interest regulation were goals like universal connectivity, stability of the system, access to the system, competition, ensuring diversity of voice and so on. In the discussions we had online, prior to this session, Vint Cerf suggested to him the common elements would be one connected Internet, not fragmented, multiple networks, openness to new applications, Egalitarian access to Internet services, safety, security and privacy. So that's another list.
Then we had Nii Quaynor Chair a strategy panel for ICANN that said that ICANN defines the global public interest in relation to the Internet as assuring that the Internet is stable, inclusive and accessible across the Globe. So you see a number of different lists with some commonalities. My question is which of these concepts seem to people to be the most relevant in the realm of critical Internet resources? I mean, recognizing we can't directly transpose from the regulated domestic Telecom World to the global Internet environment. But which of these might be relevant?
Larry, I look to you first.
>> LAWRENCE STRICKLING: Thank you. I want to go back to Jeanette's framing, because I still think it's helpful to have an overall framing to the discussion. Certainly in the U.S. Jeanette is absolutely right. I think public interest emerged as a regulatory tool. But what it was a reaction to was a sense of a scarcity of resources, because it's been used in the context of radio spectrum, where not everybody could be a broadcaster. And it's also been used as a way to regulate monopoly, which was the standard basis on which telephone services were delivered to people in America until the 1970s.
It's interesting when you apply this to the Internet, we don't really face scarcities and lack of competition as an innate characteristic of what we're doing. In fact, it's just the opposite. But I still think that one can look at those elements in terms of ensuring that we preserve that abundance and ensuring that we preserve that competition as a way to think about actions that would be viewed as in the public interest. And within that, I can think you can certainly take the list that Nii and his team developed as part of the ICANN report. But it seems like there are some key elements that have to be part of this. Certainly openness versus closed.
And I think as we look to establish shared norms, I think people would view openness as being part of a shared norm that maximizes abundance and maximizes competition.
I think growth versus stagnation. People again would come on the side of growth, not stagnation.
I think unified as opposed to fragmented. Again, I don't think these are hard issues for people to say are all characteristic of what we would see as a resource that is kept abundant and kept open to competition.
Where it gets tricky is when you want to go against some of that. So we can talk about openness being the shared expectation, the shared norm. Yet we are confronted with child pornography, where people would say well, yes, we want people to have access to information. But there is also a shared norm that may be not type of content. And I think that is where it gets difficult. Because you can't just apply these dimensions, these vectors, without any conditions on them whatsoever. And that is I think the harder discussion is even when you get the shared agreement on these attributes that we can all line up behind, we still have individual cases where we say well not in that case. And that's the hard one for us to talk about.
>> WILLIAM DRAKE: And one of the challenges there is everybody has a different list of not there. And Jari.
>> JARI ARKKO: I think of this topic, public interest, how does it relate to what a particular organization does and how can they affect this particular issue?
And the thing to observe, continuing from Larry's point of scarcity and whether we have that in the Internet, so the Internet evolves or sometimes does evolve faster than we on the public side or public policy can actually react.
To give you examples, by the time people start caring about TLDs, people might be more interested in hashtags. Or if you care about port numbers, you'll find that most people are running their HTTP over port 80. Or when you start worrying about address allocations, you find that people moved to IPv6. So you can see where the Internet really let's people invent, you know, in principle at least, limitless designs.
So I think that we will find that we still have Public Policy issues here, but they are different. It's not so much about what exact thing you gave out, what the names are, for instance. But rather that you had a system. These things are still useful, but they are more in the background. And what will you actually care about more is you have an open process to run this thing that is needed for the Internet to be open for its part. And that, you know, you have stability and openness and multistakeholder processes.
>> WILLIAM DRAKE: Thank you.
>> WOLFGANG KLEINWACHTER: Thank you very much. This is Wolfgang Kleinwachter, for the record.
As Nigel has said, it's difficult to define. And I think we will see public interest with some other issues. You know what it is when you see it in the concrete situation. So that it means public interest is always linked to a certain context. And insofar, you know, a very important criteria is what Jeanette mentioned in the beginning, this is capture. You see here is an issue. And if this is captured by one group, you say this is not in the public interest. So we have to find a balance. And I think this is really for ICANN, and a very important challenge to find balance and not to allow one group to capture a certain process.
In preparation of this workshop here, I found a very interesting old piece from the famous Judge Brandeis. The Bill said the public interest goes back to the telecommunication law. But Brandeis in the year 1905, a hundred years before the Tunis Agenda was adopted, wrote a piece. And I quote it because it's interesting and it fits into our ICANN reality, "Able lawyers have to a large extent allowed themselves to become a chance of great cooperations and have neglected their obligation to use their powers for the protection of the people."
I think he just realized that something is wrong, this imbalance, and we have to reintroduce balance. And I think this is a good guideline. And also a good guideline for ICANN in the future in particular if it comes to the issue of new TLDs.
>> WILLIAM DRAKE: Wow. Loius Brandeis being quoted.
>> ANRIETTE ESTERHUYSEN: I know more about Telecom's regulation than I do about ICANN. And what we find is that increasingly even though the bodies are set up, the understanding of the role comes about ensuring a level playing field. And I think that is what is happening in Internet governance sometimes as well. And -- which is why I think this is such an important topic.
So the goal and the measure of regulation becomes competition, because it's an assumption that competition and an effective market is going to solve all problems. Often it does, but it doesn't solve all problems.
And then there is not enough discussion about what the public interest is. So yes, Wolfgang, it is hard to define. But as Jeanette has said to us, it's not important that it's hard to define. What is important is that we define it. And that making that definition integral to Internet governance processes becomes the norm.
And then I think the real challenging thing here is who does that defining? And that's what becomes very different in our minds: Internet governance context from traditional public interest regulation processes.
I have a question for everyone. The notion of permissionless innovation, which is something that is always upheld as an important goal and standard. Now, is the notion of permissionless innovation and public interest protection, are those compatible?
>> WILLIAM DRAKE: This is one of the questions.
Me, I'd like to ask you, since you did Chair this panel, you had a discussion with a group over what, a half year's time. And you, after much deliberation, came to the definition that I quoted before. And you restricted yourself to stable, inclusive and accessible. Why did you choose to configure it that way? Because we have just heard quite a cornucopia of other things that people also see as being consistent with the public interest.
>> Clearly it's not so easy to define and it depends on the context and it depends on the time. So if your fix is so hard and so precise, you will abandon it in a short time. And we realized that. For a good length of time, I resisted defining what it was. However, as we heard more from the community, we thought we might clarify what we meant with respect to what we had been asked to do.
In other words, it depends on what you are trying to do also, okay? If your objective is regulation, okay, you will do it that way. If it's a social justice type of thing, you'll do it that way. In the case of ICANN, it was a case of engaging better with the community and supporting the development of the community. So it was a small effort to get close to the community and do some things nice for the community.
Now, with that background, then it's not regulation, and it's not exactly social justice, by improving how we work together. And as a result of that, and by agreeing on that, we could agree on three or four things. And with the exception of the security side of things, which we thought was probably a bit early at the time to fix, so that was the kind of thinking that was going on as well. Of course it had the benefit of some very good experienced members of the board, and that made us balance the views a little bit better.
>> Were there words that you considered and didn't include? Like -- there is nothing in here like "innovative" or, you know, other things that people like to use to characterize the Internet. Did the group consider some words and say no, we don't want those?
>> We considered them. But we also felt that it could be the next level issues. Meaning we don't have to bring everything to the top. So we chose the ones that had the broadest inclusion, so to speak. And then in the detail of the document we addressed some of the innovation, capacity, education related issues.
So it's more like what do you want people to remember as the things to focus and buying to and apply it in all aspects? And that was the way it turned out.
>> WILLIAM DRAKE: I think one more. And then I'll move to the -- we maybe can do two more questions and then I'll open it up to everybody. Jeanette?
>> JEANETTE HOFMANN: I'd like to address Anriette's question which I found interesting. I try to apply my own categories to that question. The lesson I came away with is that there are no simple mechanicic solutions. You cannot just put something in place and keep the machine running in outcomes public interest regulation. It's about the two conditions, rule of law, due diligence on the one hand, which these authors call the supply side. And the demand side people need to have an interest. They need to have a concern. And need to be able to make themselves heard. And when we think of permissionless innovation, the big question is do users have a choice? Can they say no to a permissionless innovation? Or are they forced, say, via terms of service, to just accept what they are being offered?
And so there is also here a question of how do we balance different players at the table?
>> WILLIAM DRAKE: So there is also a notion of Consumer Protection that is also inherent in this.
Well, I think we had one of those idea rating sheets. People have thrown a lot of different words and, you know, which combination of them some people might prefer. I imagine there are some areas of convergence and some areas of divergence. But I don't want to press the point.
I want to turn to the converse question. One of the things that we have had debates on, and I'm looking at Milton Mueller within the tribe at ICANN. Can we try to understand or define the public interest in relation to Internet governance? Because if you do, you'll get everybody trying to throw their favorite terms, their special interests on the table, and say this should be protected, this is the public interest.
So the question I guess is: Is there a danger in trying to come to some bounded understanding? Would it be better for us to just leave this as a kind of vague aspiration, as Jeanette said, that we constantly strive towards the horizon? Or is it reasonable to try to at least bound it? What do people think?
I'm being floral. Anyway, Rinalia.
>> RINALIA ABDUL RAHIM: I wanted to touch a bit about the risk or the dangers. And I want to go back to Jeanette's framing to start over the process issue. In contentious environments, and ICANN is an example of a very contentious environment, it's likely that a process of defining public interest would set off interest-based negotiations and it can be quite heated. So the process of defining public interest requires a process that is inclusive. And what is not often mentioned is well facilitated to achieve consensus-based definition. So this is not easy to do, especially in multistakeholder policy environments.
So let me outline a few of the challenges so people are clear. One is the risk of failure in inclusion and implementation, which may be found in abuse, which is a form of capture. A group could justify action in the name of the collective public.
Second, innovation of the public interest typically happens in the policymaking or decision-making process. Where what is in the public interest would vary depending on which public is affected. So a definition of "public interest" which is fixed would have to hold across all policy issues. And there has to be clarity of who the public is. And what interests do people represent and what values? People attach different standards to what is a public interest. This makes a consensus definition difficult.
So serving the public where interests are diverse, it's a matter of balancing interests and trade offs. It's likely to be a process to define a term would set off interest-based negotiations especially in contentious environments where interests tend to collide.
>> WILLIAM DRAKE: The board approved a strategic and operating plan that says ICANN has to come up with a definition. You both are on the board.
George, how are you going to do it?
>> GEORGE SADOWSKY: I'm not. I think I agree. I don't think it's worth defining. I think that Nii's definition works. Let's stay with it. I'm glad, by the way, that nobody is saying there is no such thing as the global public interest here, because there are people in the ICANN community who have argued that. And it's fine as an aspirational goal. The first thing I thought of when you invited me was the Bhutanese. They don't have a concept of GNP. They have a concept of gross national happiness. If you ask them to define it, they couldn't, but they know how to work toward it. I remember what Wolfgang said about recognizing the global public interest. There was a Congressman in 20 or 30 years ago when there was a hearing on pornography. He said "I can't define it, but I know it when I see it." The same thing is true with the public interest. Nevertheless, there are issues in ICANN. I'll be very specific here, we deal in numbers, and Jari point the out correctly that we no longer have a scarcity in numbers. We also deal in names. And we don't have a scarcity of names either. We are making them up as we go. But names have anticontent and some names are loaded with semantic content both positive and negative.
One of the problems that we have, the Internet being the latest thing to bring the world and all the people in it closer together, is we have clashes with respect to what semantic content is acceptable or not. And the clashes come into the ICANN community, where the GAC makes recommendations regarding certain things with respect to names, and other parts of the community make -- represent the opposite points of view. So within a multistakeholder environment, we have this conflict, which is going to be very, very difficult to work out. Not only because it's a real conflict between philosophies. But it's also a conflict that have national and global borders that assert itself at this time.
>> WILLIAM DRAKE: Don't tweet ICANN board members like pornography!
Let's take a few more and then open it up to the room. We will take more than a few more. But one last round. Marilia, Thomas, Larry, Thomas, and Wolfgang and -- and Jandyr, we have not heard from you, and then Nigel.
Yes, where am I?
>> MARILIA MACIEL: I think it's not possible to draft a definition like you suggested in a paragraph in what the public interest is. It would be like Congressmen trying to reform the Constitution. The temptation to reform or draft it in a way that would be to their own benefit, that would be our challenge. But I think it would be valuable to have some principles that would anchor the discussions that we are having. So that every policy that is being discussed, let's think about the ICANN environment, for instance, could be measured against these principles. I don't think that maybe -- I talked about the NETmundial document, because I think it has been a reference from all of us and it comes from a multistakeholder discussion. But if we don't want to copy that document, that is fine. That document could serve as an inspiration of some principles that could be applied to some organizations. But I think having the principles and measuring the policies would be important. Of course it comes to implementation. And I think on the implementation phase, negotiations are inevitable and they are healthy. It's not necessarily a bad thing. But having ideas in which to -- in which to anchor, is it fostering privacy or not? Is it fostering freedom of expression or not? Is it fostering the single universal Internet or not? I think having that would be valuable and it's feasible to do it.
>> WILLIAM DRAKE: So bounding the concept of it without having to come to a very concise combination of words.
Thomas.
>> THOMAS SCHNEIDER: Thank you. I like the global happiness index. And Brazil is probably how many Caipirinhas that you get a day.
We should adopt a broad notion of global public interest or common interest. And that will probably not be possible to define, as others have already said. It needs to be a process that -- an iterative process that constantly reassesses, given some circumstances that are evolving, on what a moment in a current framework and with a certain number of people affected or nonaffected are.
But there are elements, as has been said, that can be singled out. And some elements were institutionalized. Rule of law, human rights after the experiences of the First and Second World Wars was probably something that was considered to be like the basis of a globally shared common interest to have as a departure for future development.
And who defines the public interest? And this is why I prefer the word common interest or commonwealth. It's not about the public. It's not about the Governments. It's not about the interests of the Government. It's about the interests of the people who may be or may feel are represented by a Government or by consumer organizations or whoever they feel represented by. And that is actually based on the logic as well of the Greeks that where self determination was on the core of the common interest that you define it yourself, but not only as an individual, but together with the other individuals. And of course there is a balancing, there is a fighting of diverging interests. And then you need to have processes where you get the best for the whole out of these processes.
And if you look at the economic part of it, if somebody through a decision wins two million and another one loses, why not let the one who wins two million give one and a half million to the other one who loses, then they both have money. That way you can calculate the public interest, but that only goes to counting things.
>> WILLIAM DRAKE: And that goes to John Rawls and rules of distributed justice.
>> OLGA CAVALLI: I would like to agree with what was said by Thomas and others. I think critical research brings new complexity to this discussion. Because they are resources that are global, have a global impact, but also have a local impact. So it's different from other education or other resources that are more locally based and perhaps easier to manage at the local level.
So what we found with new gTLDs and in discussions in the GAC is that "public interest" means different things for different stakeholders, which is understandable. For example, trademark owners have laws to protect trademarks. Communities are concerned because of some meaning of some names. And industries are concerned because of the meaning of some words. And then it's Consumer Protection. So each of the stakeholders have a different concept of what is public interest. And there you have a conflict. You have to find a way out in finding something common for all of them. So I agree with Thomas that it should be a process, and I am confident that the multistakeholder dialog space will find a way out.
Thank you.
>> WILLIAM DRAKE: What you say points to the fact that it can't just be the aggregation of individual interests. If we get a bargaining process where everybody wants to throw their thing in the pot, you end up with 800 things in the pot and you go nowhere.
Wolfgang.
>> WOLFGANG KLEINWACHTER: A brief comment to the viscosity argument. Larry is right. You know, the difference to the spectrum and us is that we have unlimited names and numbers. But the flip side with the unlimited names is that each individual name is a very scarce resource. So it means that this one name has to be unique. And that's the question. There is only one dot wine, there is only one dot radio or one dot bank. And a lot of these things have meaning. And then we have a scarcity if you go to individual cases, and this makes it very complicated. And whether you give this to just one group and say you can do it, or you respect the public interest, this is the very concrete challenge for ICANN in the future to find the right balance.
>> WILLIAM DRAKE: Thank God for synonyms. Larry, you're a Telecom lawyer, you can figure it out. What is the answer?
>> LAWRENCE STRICKLING: I think we're not being tough enough on ourselves. I think we could take what Marilia Maciel said and what Thomas said and put together something that I would think would get us most of the way where anybody would want to get to. And I think we are combining two questions. One is what is the public interest and how does an organization operate within that definition of the public interest?
I think this room, if we had the right process and the right amount of time, could probably reach a consensus view on a series of attributes that we all would agree would constitute elements of the public interest. The caveat you'd have to give at the front of that discussion is that we recognize that every one of these has an exception. That there will be some cases where it doesn't apply. But really are there people in the room here who want to argue for a closed versus an open Internet? I don't think so. I mean, if you are, identify yourself.
But if there is anybody --
(Laughter)
Is there anybody in this room who would say I want an unstable chaotic Internet as opposed to a unified stable Internet? I don't think anyone would say no, no, I see the benefits of chaos.
So I think if you could get some agreement around that, then the question is how do you operate? Whether you're ICANN or any other body in this space, how do you then engage? And Thomas put his finger on it. Then you have to have the process which lets you figure out the exceptions to the norm. And that needs to be multistakeholder. It needs to be inclusive. Transparent. All the other attributes that we talk about.
But I do think that as a way to operate and as a way to send a signal to everyone in the world in terms of what organizations like ICANN or any other of these stand for, I think it's important to try to develop this less -- you can call them attributes. You can call them principles. I'd also call them presumptions in the sense that this is what we would expect. This is the default condition but we're willing to entertain exceptions to it arrived at through an appropriate multistakeholder process.
>> WILLIAM DRAKE: So we need the Working Group on public interest. I'm kidding.
Just two more quickly. Anriette Esterhuysen.
>> ANRIETTE ESTERHUYSEN: Just to agree with Larry and Marilia, the thought that you know it when you see it, I think we have to tackle the question of what the public or common interest is. And then just a question to ICANN. And, I mean, I know that must have been a hard task, but a definition of the public interest from ICANN that doesn't mention names. It's a bit like a definition of public interest in land reform that doesn't mention land.
But just to go forward, I agree with Thomas. Maybe we need some broad definitions or principles or something to strive to at an Internet governance wide level. And then I think the different institutions, so managing of numbers, managing of names would then -- we then have to define that in a more narrow way in relation to their own work.
>> WILLIAM DRAKE: Nigel or Jandyr.
>> JANDRY SANTOS: As a Brazilian civil servant, I worry about the general welfare of the people and then again how do you define the general welfare of the people. You know when you see it. We do believe that.
Of course, when you bring this discussion to a more specific context in the Internet governance ecosystem, and then again as a Government representative, I think this discussion brings us back to the Tunis Agenda to the language that was agreed like ten years ago. And more specifically on the role of Governments, the public authoritative Governments, in defining Public Policy issues related to the Internet.
So my point is that we've evolved over the last ten years. The multistakeholder process has evolved. And I think in a sense I would like to add my voice to the, in a sense, to the thrust and process of getting together with the other stakeholder groups, in the sense of defining what the public interest is. I think this is something -- it's really hard to compare the environment of ten years ago. What we experience today is far more complex. Well, we do believe in the process.
>> WILLIAM DRAKE: Listen. The hour went quickly. We have gotten to 3:00 and I want to preserve enough time for everybody else. So I just ask Nigel and Jeanette to keep it to one minute.
>> NIGEL: I'll be very brief. First of all, I thought this was an IGF not an ICANN meeting, but then I do get confused.
So publc interest is already defined under section 2 of our -- of the bylaw, under core value. We have -- sorry.
Under section 2 of the core value, we have number 6. Introducing and promoting competition in the registration of domain names here practical and beneficial in the public interest. So we have already in our core value, if you like, the recognition that in terms of our work, in terms of introducing new Top Level Domains or the community introducing, then that has to be in the public interest.
The work that was done, obviously, was incredibly important in sketching out the organization to an organization like ICANN. It has to do with the public interest. And what Larry said, if you have to define open interoperable, ou come back to the ICANN mission of what the public interest is about.
In terms of what ICANN is doing, it is doing some what we call desktop work. Looking at the various comments that have been made since Nii Quaynor published his report. We are doing research on how other bodies which are similar to ICANN define the public interest.
>> You could be closer to the microphone.
>> NIGEL: And this could be input to that work and there could be other discussions either at Marrakech or other ones for ICANN.
>> OLGA CAVALLI: I'd like like to briefly comment on Nii's and Larry's criteria, stable versus unstable, open versus closed. I wonder how far you get with those criteria when you look at specific practice, such as mass surveillance. Does that give you any idea whether that is in the public interest or not?
I'm not so sure. My feeling is that you still have to balance various, say, Human Rights. I like Marilia's point of view that there are frameworks, Public Policy frameworks, that we can use for anchoring public interest. But still it needs interpretation, application, and in many cases we now see that even human rights might conflict with each other. Say privacy versus freedom of speech.
So process is needed to get there.
>> WILLIAM DRAKE: And the relationship between human rights and public interest is one of the things we debated in our little ICANN subgroup.
All right. Nii quickly. Then I want to go to the open --
>> NII QUAYNOR: I just want to point out that we can define if we want. Because I didn't want to define for the panel, ICANN panel, but we did. And you still are raising some issues. So you define, we will still raise issues. I think it's important to know that.
The second thing is that ICANN is not involved in mass surveillance. So we don't have to consider that in the definition, because the task force to help ICANN improve its relationship with its community with respect to, you know, public interest.
>> WILLIAM DRAKE: understood.
So let's go to open discussion. Is there anybody on the remote participation who has a question? I don't want to leave anybody out because I don't know about it.
Are you saying yes, there is? Somebody give me a signal of some sort. Yes, there is. No. Okay. So let's start -- I'll go with Allen, Milton, I can't see you over Milton's head, the gentleman in the back. Let's take three at a time otherwise I'll get lost.
Please say who you are, and be concise.
>> Allen --
>> WILLIAM DRAKE: Come to the microphone if you are not seated at the table.
>> AUDIENCE: Allen Greenberg, Chair of the At Large Advisory Committee in ICANN. I used to think that the answer was let's come up with examples, that we can't define it, let's use examples. Now I'm not convinced that is right.
But following what Thomas and Larry said, I think the debate over several examples would be really illuminating. And try to identify where the conflicts are, where the differences are, and that would probably get us into an interesting state. I'm not sure we will end up with an answer, but I think we would understand the problem better.
>> WILLIAM DRAKE: Milton.
>> AUDIENCE: Milton: Yes, I spend a lot of time -- Milton Mueller. Georgia Tech. So I spend a lot of time studying the public interest regulation in the context of Telecoms. And I'd be unable to see some concept brought into the ICANN environment or the Internet governance environment especially, the broader.
Let me begin with one aspect of Jeanette's very good overview of the concepts. She noted that capture was something that it would be good to have this concept to argue against some form of capture. The ironic thing here is that the whole concept of regulatory capture was developed by economists who were studying the public interest regulation institutions established during the progressive era. And all of this concept of capture occurred after the creation of public interest regulation. Of course all of the capturing parties were arguing and can always argue that their interests are conjoined with the public interest.
So, for example, taxi drivers arguing against Uber saying it's in the public interest to have these things regulated. So you can argue that something is pro or anti public interest, but for this claim to be meaningful, you have to translate or convert the public interest into something else. And I agree with people who are saying that it's the process that matters here, I think.
I think Larry made this distinction. That if you get the right stakeholders in the group and you get them to work out some kind of agreed definition of what particular tradeoffs have to be made to reach everybody's interests, then you might have something approximating a public interest. But that will be different for every time.
So why do I not want us to try to define it in abstract? The reason is the ability of a public interest standard to serve as a blanket for arbitrary exercises of authority. If we tell the ICANN board, you should have a clear limited mission. You pursue that mission, that's a good thing for our accountant and good governance. If you say to the ICANN board, go out and pursue the public interest, you're asking for trouble, are you not?
So if we're talking open versus closed, you'll have an argument about, you know, as Jeanette indicated, a very specific argument in a specific context about what openness means, how it translates in a particular situation.
I just don't see any value add to this discussion by trying to come up with a definition of the public interest. And I don't want the public interest put over other mission statements as the standard of criteria for the Internet governance institutions.
>> Even as a normative regulatory idea?
>> AUDIENCE: Yes, things should be good for the public, yeah. And that's as far as it goes. That's all it takes.
>> WILLIAM DRAKE: Okay, Milton. I want to follow up, too, but we have -- go ahead.
>> AUDIENCE: Happily, I'll follow-up to some degree.
So I'm Harold Feld, with Public Knowledge. For those unfamiliar with us, as an NGO, we are a U.S. NGO. And I'll add I personally have been involved with ICANN from time to time.
I am also a telecommunications lawyer, and have some familiarity with the history of the term "Public interest." Its earlier incarnation was the phrase "Public convenience and necessity." Public convenience, a concept going back in the common law countries for some several hundred years prior to the development of the administrative state to which Milton refers.
I'd agree strongly with Jeanette that experience and broad history dictate that the idea of the public interest as distinct from pure private interest and the fostering of private interest is important as a normative statement. That, traditionally, I would add that there are constraints that are imposed through the context of the regulation agency context.
That this is, for example, in the ICANN context, the statement that ICANN needs to manage its Internet resources in the public interest consistent with its overall mission should not lead to a broader mission of seeking to eradicate child pornography because such a thing exceeds the structural nature of ICANN itself. And this is often a structural check on an overbroad interest, overbroad reading of the public interest.
Finally, I would just like to point, to quote Alexander Pope, hipocracy is the complement that vice pays to virtue. While it may be that public interest can be viewed as a concept, it can be twisted. Its absence which makes private interest the sole good is a far worse universe to live in where those who wish to manipulate the system must at least pay some token notion to the idea that the regulatory structure serves a greater purpose than their own private gain.
>> WILLIAM DRAKE: Thank you, Harold.
The gentleman in the pink. Are you standing because you want to come to the microphone?
Okay. So anybody who is around there, just please just come to the microphone. It's the easiest way. Please say who you are.
>> AUDIENCE: All right. My name is Akamo from JPNIC. I'd like to share my case with the Japan Networking Centre. It's a Japanese company. It's an incorporated association. And then in Japan's regulation, it's actually reasonably relaxed. I'm now talking about the case before the reutilization. JPNIC was at the time the public interest corporation. The term of "public interest" at this time is that for our application, there was the -- not for the interest, for a certain particular party. So it is real hard. Now why is the -- we are a membership association. And our revenue is the membership fee revenue. So members pay to JPNIC for our business. But our business shouldn't and mustn't be for the interest of the particular party.
But this concept is really suggestive for us to do our business. So that -- this is just tiny sharing with you. But I don't think it's -- it's not, you know, not broad to this discussion.
>> WILLIAM DRAKE: Fantastic. Thank you very much. David.
>> AUDIENCE: David Kaye, Electronic Frontiers Australia and a GSA counselor with ICANN.
There are a lot of people talking about the wisdom of having a relatively constrained and sort of minimal idea of how we talk about -- a definition of the public interest for ICANN's purposes. And I think they're talking in the -- I think some of the impetus for talking about the public interest in ICANN came from the idea that it's in the ICANN bylaws, I think.
You know, that the board needs to know what it is if they are going to stick to their bylaws. But my problem is that's not the only way we talk about the public interest within ICANN. And the idea -- the public interest commitments that we have, which are commitments of individual registry operators for domain names, already seems to have expanded to a very, very much broader and complicated idea of what is the public interest. We have people talking about pharmacy law and about copyright and all sorts of other -- a whole grab bag of issues. There are people saying that we ought to have a minimal constrained sort of idea of what the public interest is in ICANN. But thanks to our good friends at the GAC, it means that we have already opened Pandora's box. We have ideas floating around ICANN and trying to control individual domain names. Have we already opened the box? And if we have, what can we do to constrain this issue and put them back if we are going to have a more -- I want to stick to a minimum idea of public interest.
>> WILLIAM DRAKE: I understand your point. I just want to make clear, this is not a session on the public interest in ICANN, per se.
(Laughter)
Although obviously ICANN figures prominently in the well. Critical Internet resources. We did describe the session as broader in focus, but of course people will talk about it. ICANN is trying to deal with it.
>> AUDIENCE: I think my question is precisely in that direction, about how different models can help preserve public interest, in the sense that Jeanette and Aki Nori said they can (inaudible). I think we mostly got stuck in old theury. I think we don't have enough theory, maybe, to see how different models can preserve public interest. And we are talking Telecom regulatory, U.S. Academia definitions, and mostly sort of Government based are the only ones that can preserve the public interest.
But what I wanted to ask is where is the community in all of these? And where there are -- and whether communities can self sustain a model to preserve public interest? And I think probably the academics will run easily out of -- outsource to quote.
But I don't think this is about ICANN. There are many different multistakeholders at play, the IGF one of them, although it's not decisional. But the regionals are based in community. And what was mentioned, the Internet model in general. So that's the question. If we can have the community on the Internet governance at play.
>> WILLIAM DRAKE: Thank you.
>> AUDIENCE: My name is Laura Shulman. I'm a trademark attorney. I represent the trademark association. And we represented NGOs throughout most of my career. So I would like to think I have a balanced perspective on what may or may not be public interest on a, of course, US basis. I'm American. But also on a global basis. And other organizations that at least I've been involved with absolutely have global reach. And I agree that balance is critical and important. But I think some of the decisions that have been made purportedly in the public interest have been out of wall, severe, black or white. And that's where we fall down. We fall down when talking about human rights and individual property rights. It's more of a question and then a question. Bill asked about was there discussion about the term for innovation. What I hear or don't hear in a lot of discussions about, particularly with sustainability and connecting the next billion and opportunities for small businesses and women in the global Internet economy, is that innovation, the protection of a new business, the protection of a name, the protection of a song, whatever that is, can help small and emerging economies grow without having some broad understanding that intellectual property rights are also in the public interest. In terms of sustainability, I think it would be a mistake.
>> WILLIAM DRAKE: Thank you.
Yes.
>> AUDIENCE: Hi. I'm speaking on research on privacy and publicness and the dynamics on that.
Jeanette said something about the cultural dimension of the concept of publicness and public interest.
And I think there is a basic fundamental truth of that. Every society, every culture defines the concept of public good differently because they have different cultural contexts. They have social, political and different contexts. And it doesn't hold true for all Nation States that we know of. It also holds true across history.
So trying to define with regards to content what makes public good implies doing that from a specific point of view in time, with a very specific context. Social political context. Cultural context. So this might mean that we are excluding different contexts, different new political, social difficulties and problems that we cannot foresee. Hence, I see indeed that there is a problem. If we tried to define from a content point of view what would mean public good, and try to impose this to all cultures, the only thing we convey, in my opinion, is how the process to define -- how the process to create a common agreement on what should be treated as a public good should be done in a fair -- in a fair -- almost fair way.
And this leads to the second point that I really wanted to make, which is that the question about Consumer Protection and the concept about economic rights. And I think we have to be current with this. We have to either decide that this is either a question of economic decisions, which are based on economic concepts based on individualism, or this is a question about human rights and a concept of public good which goes beyond the concept of individualism. Because Consumer Protection is a concept which is applied to the -- or that has to do with an economic concept based on a very individualistic idea. So if we take the Consumer Protection approach, we cannot then go and say that the public good is way more than individual rights. And it's something different.
So, in my opinion, I think there is a need to sharpen more this difference and make sure what we actually want to say. And I agree with Milton. The only possibility that we have is go for the process. If we don't want to be impeeristic and impose our idea of what we think should be fair and is probably good.
>> WILLIAM DRAKE: Thank you, Lorena. Are there any remote or no?
Nothing?
Okay. So let's, we have ten minutes left. Let's -- how about we go back around the table again with the participants. One minute each. Or less, if you can. Your main take away about should we try to take this discussion forward? And what would be the priorities or whatever else you want to give as a main take away. Start with you, Nii.
>> NII QUAYNOR: I think there has been very healthy discussion. So certainly we should not stop. We need to continue discussion, and defining a good process is healthy for that.
On the other hand, I will advise we stay towards the minimalist view, because the context is a challenge. And we can indeed accommodate the other discoveries by defining ways to embed it within the larger minimalized scope. Meaning you don't lose it, but it doesn't stay on the top. They stay on the second level and that's okay.
But to get an agreement on public interest, I wish we would not go that way. Maybe consensus, maybe. But let's make it possible for others to also come later and define what they think it is, and I prefer that.
>> WILLIAM DRAKE: Thank you very much. Larry?
>> LAWRENCE STRICKLING: So I come away from this discussion recognizing that there are a lot very hard questions here, particularly when you start talking about specific examples.
But I think it's easier to talk about the hard cases if you have a framework of principles and presumptions around which to have that discussion.
I think also there is a tremendous benefit to having a community of stakeholders trying to set those norms and presumptions, to set the practice, the process, of who all gets to participate in these discussions. And if you start off with an opportunity to have open discussions, we can then avoid the claims that some groups may make that they speak for the public interest, not everyone.
So on balance, I think there is still useful work to be done here.
>> WILLIAM DRAKE: Thank you very much.
Jeanette?
>> JEANETTE HOFMANN: The first one, I think Harold Feld said. Even if public interest, the notion, is open to views, as Milton pointed out, it's still better to strive for a public interest than not even -- sort of just giving up on the whole idea of having a common interest versus just pursuing individual interests at the expense of a common good. That's the first thing. Thank you, Harold, for putting this so succinctly.
And the second one is that I see there is a range of definitions of "public interest." There is a minimal definition which was mentioned at the beginning, which is to prevent capture. And this one is more European, perhaps, and that is the political tradition that I grew up with. And that was more on the side of what Thomas said in the beginning. It's having the duty to work collectively together towards a common interest. It's not preventing something, it's positively defined as something that unites us and I would think brings us together here.
So I'm on that side of the whole range.
>> WILLIAM DRAKE: The classicals had it right. What did we learn? Jari.
>> JARI ARKKO: I believe that it's worthwhile to pursue public interest and find out what it is in specific cases, for instance.
I do think that trying to come up with a specific definition may be too hard. So I'm more in the camp that believes we have the right, stakeholders and processing in place, that's more important than a formal definition.
>> OLGA CAVALLI: And this is very useful for our work in the GAC. We have a Working Group. And one of the issues in our working plan is trying to define "public interest." So the transcript of this session will be very relevant.
I'd like to agree with Allen about focusing on concrete examples. Agree with Larry in having a frame of concept in which lies these concrete examples. Finding the balance. Preventing capture and working collectively in this beautiful multistakeholder dialog. Thank you.
>> WOLFGANG KLEINWACHTER: To have good procedures in place. And if you can refer to good principles, it's much more easier than to find out what the public interest is in a concrete case.
Thank you.
>> ANRIETTE ESTERHUYSEN: I take away that it is not about a single definition. I agree with Larry that it's easier to deal with the hard questions if we have this framework of principles, and then that we have a commitment to making sure that the process is fully inclusive. And that does need to go beyond our current quite one-dimensional approach to multistakeholder participation.
And then I think we are going to have to start thinking about what the Internet is. And do we approach it as an interest and we want to make sure that there is a level playing field amongst operators that are playing or making money on it? Or do we see it as what it was stated to be in the NETmundial statement, a global public common resource and Government that way.
>> THOMAS SCHNEIDER: I agree with all that has been said in this round. I wanted to make the point of inclusion. The culture that I come from is not only built on this positive note of Commonwealth but also on the idea that you may have to delegate something to something like the Government, but it should be bottom-up control. But in order for it to be bottom-up control everybody at the bottom should have a voice and tell the ones that are entitled to decide for them on their behalf what they want you to decide. So inclusion in Internet governance. But in general, any policy issue is key to this repeated political cycle of defining and adapting and developing public interest. Thank you.
>> GEORGE SADOWSKY: Three quick points. First of all, I think we will learn a lot more by looking at specific examples and dissecting them than by working with definitions. I take these definitions and run with it.
Second point. There are different scenarios here and I think -- I've been confused by trying to apply things that are built for one scenario for another. For example, is it in the public interest to eliminate polio? It's clear that that is. You get very strong positive responses to it. There is still trade-off, getting vaccines and people you send to the field takes money.
The other thing is where you have groups in contention, it may be a zero sum game or a small positive sum gain. And there is a lot of discussion and some conclusion is reached finally. I would say it's in the public interest to proceed, but I don't see that as a public interest application. I see that as a conclusion that you have to follow-up. There is the question of adequacy of representation. Several of you said the right people have to be at the table. There are 3 billion users. We don't have a table large enough and there are all kinds of groups saying that we speak for the Internet users. The adequacy and the representation there is really important and I don't think we have that right.
>> RINALIA ABDUL RAHIM: It's inevitable that people will push for defining the "public interest." I think this is part of being human. Process is key. And I think that we don't pay enough attention to the resources and the design of that process to make sure that we have a good outcome.
And that could be a risk of failure. So I think that we need to pay attention to that, if definition is what we want.
>> MARILIA MACIEL: I think that actually the colleague from Public Knowledge nailed it. If we think about the status quo, I think we have an Internet and Internet ecosystem that is increasingly controlled by private actors in all layers. We have infrastructure and connectivity privatized. We have a logical layer that is private led in ICANN and in the development of standards which are increasingly private standards. We have companies on the application layers. So the system is less and less public. It's more privatized and it's becoming less distributed. So this is the reality that we are operating. Not that private led is something that is necessarily bad. But we do need mechanisms to keep private interests in check. So I think that the high level notion of public interest that would be anchored in fundamental principles and of course good processes to balance the hard cases are necessary and urgent.
>> JANDYR SANTOS: I bring my belief on the discussion and belief of the need in engaging in this discussion. And this should be based on, in my view and trust among all the parties iinvolved, and balance has been discussed in a multistakeholder framework. Thank you.
>> NIGEL: Very useful, clearly listening mode here, lots of arguments about how one defines it, if one does define it.
But two points. Whatever, whether we have a definition or not, we have to act in the global public interest, that is clear. As an institution whether you are ICANN or any other institution, we are signed up to the NETmundial principles and we have it in our core values that we have to act in the public interest. But thank you very much for this session.
>> WILLIAM DRAKE: Okay. Well, we have --
>> Bill, what do you think? We have not heard from you.
>> WILLIAM DRAKE: I'm not allowed to have an opinion. That's what being a Moderator is. Milton and I have been friends for 25 years and disagree a lot. We agree sometimes, too.
My problem with the view that it's dangerous to try to do this because people will capture, I think people will capture if you don't try to do it. I think if you have a completely abstract vague term and it's already widely being used and it's being implemented in all of these International instruments, and you've made no effort to bound the concept in any way, shape or form, and have some broad consensus about, you know, as Larry said, ordering principles, openness and so on, it seems to me that the possibilities for abuse of capture and misuse are even greater.
So I don't know that we can come up with a concise singular beautiful definition like the Working Group on Internet Governance did on Internet Governance. And by the way, we have a session tomorrow afternoon at two o'clock, the tenth anniversary on the working of Internet Governance coming up in the book. But also I would say that we have to try to have a process, we have it go through this together and see where it takes us. There are many question,s we have not begun to scratch in these 90 minutes. The relationships to human rights. The differences between national and global. The relationships between governance of the Internet, critical Internet resource, and how you would think about the public interest and the governance on the Internet for information, communication, and commerce. Just tons of questions here. So I think it's a big Juicy area that needs more thought.
And I thank you all for contributing to what I thought was an interesting discussion.
So thank you.
(Applause)
(End of session 15:40 p.m.)