Andrew McLaughlin’s C-Note

My response to the Palfrey, et al., study has been picked up by CircleID as a two-part series:  ICANN and the Virtues of Deliberative Decisionmaking. Check it out; feedback welcome.

I just published a pretty comprehensive Analysis and Critique of Mongolia’s Draft Law on Information Technology.  The core conclusion: the Draft Law as it now stands would do significant harm to Mongolia’s vibrant and promising information and communication technology sector.  To wit:

For the reasons detailed in this analysis, the Draft Law should be substantially revised and rewritten. To fulfill its responsibilities as the guardian of the people of Mongolia, the Great Khural must give careful consideration to each of the many policy choices that would be codified in the provisions of the Draft Law. An alarmingly high portion of the policy choices in the Draft Law will cause harm to Mongolia’s national Internet and e-commerce sectors and to its future as a competitive player in the global information and communication technology markets. Many provisions are confused and confusing, apparently reflecting a lack of technical understanding.

At home, the Draft Law would crush e-commerce with unnecessary regulatory burdens, block effective deployment of new technologies and infrastructures, raise the costs of Mongolia’s ICT enterprises, restrict the range and reduce the quality of communications services, and increase the monthly bills for Mongolian users. If the Draft Law is approved and implemented as it is currently written, Mongolian citizens will be saddled with fewer choices, older technology, slower connectivity, higher prices, irrational limits on technology, and more bureaucracy. Perhaps worst of all, the Draft Law’s burdensome regulations are so vague and expansive that they will undoubtedly open new vistas for governmental abuse and corruption.  For Mongolia, the net result would be a costly tragedy of short-sightedness and a squandering of potential:  with its high levels of education, literacy, and technical skills, the country is well-situated to be a highly competitive player in the global market for ICT services.

Mongolia deserves much better than the broken legal framework of the Draft Law on Information Technology.  If the country is to foster entrepreneurship, local enterprise, and low-cost, high-quality ICTs for all Mongolians, the Draft Law must be thoroughly reconsidered and rewritten.

The worst section is the one on digital signatures — it should stand as a case study (and cautionary tale) about the dangers of technically clueless lawmaking.  The Draft Law is being considered right now by the Mongolian Parliament (the State Great Khural).  In the grand scheme of things, the Draft Law represents a critical — and potentially quite negative — turning point for Mongolia.  The members of the State Great Khural owe it to Mongolia’s future generations to thing long and hard about the Draft Law, to take the time necessary to understand its provisions and implications, and then to chart a different course.

My Berkman colleagues John Palfrey, Clifford Chen, Sam Hwang, and Noah Eisenkraft today published an interesting study on Public Participation in ICANN.  They very kindly offered me the opportunity write a concurrent response, and I was only too happy to oblige.  The result:  The Virtues of Deliberation: A Response to “Public Participation in ICANN”. 

Basically, I conclude that the study has two fundamental flaws: (1) it misunderstands both the theory and the practice of ICANN’s policy-development process, and (2) it leaps from its very narrow — indeed, myopic — focus on the online message boards at forum.icann.org to a set of sweeping (and, in my view, unwarranted) conclusions about the success or failure of public participation in ICANN. I argue that ICANN is designed to be a deliberative, not an objectively “representative”, technical policy-making body;  that its is ICANN’s Supporting Organizations, not the online message boards, that are at the heart of the policy-development process. By limiting its methodology to counting identifiably pro and con messages posted on the unverified, unauthenticated message boards, the study missed the essence of how public input and participation in ICANN actually occurs. The validity of its conclusions suffer from that rather sizeable blind spot.

The money line: “In short, concluding that the ICANN experiment in public participation has been a failure because online public forums have been a failure is like saying that television has been a failure because Cop Rock was a failure.”