Would you like this hypothetical telecom regulator to head up ICANN?

Let’s imagine a hypothetical telecom regulator getting picked as a new head of ICANN, and the consequences it might have. ICANN is the organization regulating much of the Internet’s crucial infrastructure, and there has been a continuous power struggle between the Internet’s values of transparency and openness against the dinosaur telecom values of walled gardens, monopolization, and surveillance.

Imagine a telecoms regulator heading up the Telecoms Regulation Authority in a small country that’s so small and insignificant most people on the global net-political scene just disregard it. Therefore, this particular regulator is able to claim whatever resumé he likes, as nobody would check the claims with the actual Internet community in that small country, and would be able to apply for – say – a job heading up the most important job there is defending the Internet’s values, that is, head of ICANN.

Imagine this particular regulator turns a completely blind eye to one mobile operator’s zero-rating a tight selection of music streaming services, despite the European Parliament mandating net neutrality across all of Europe and completely outlawing this sort of practice, the way “Free Basics” was recently killed in India and net neutrality upheld. This kind of blind eye is quite unusual for a telecom regulator – at least one who carries the Internet’s values proudly and seriously.

Imagine this particular regulator unquestioningly enforcing the detested data retention onto Internet Service Providers in the small country, despite very questionable legal ground and completely at odds with the Internet’s basic values, only to cease enforcing the surveillance momentarily when the European Supreme Court found the practice utterly illegal, commissioning his own evaluation, and then promptly requiring the same ISPs to recommence the mass surveillance. Why?

Imagine this regulator hates transparency so much, that they would rather illegally disappear their own authority’s evaluation of the legality of mass surveillance and data retention when the report concluded mass surveillance was probably very illegal under European protection of human rights:

The director of the Post and Telecom Authority, Göran Marby, considered it “inappropriate” to file the authority’s evaluation of the European Supreme Court’s ruling against data retention with the Parliamentary Committee on Legal Affairs. If the evaluation was properly filed, it would become public, which Marby didn’t want to happen.

Imagine it takes a court decision in the small country for this particular telecom regulator to comply with the very constitution’s requirements for transparency of authority documents:

Every citizen has the right to access public records according to [paragraph in the Constitution]. […] According to this ruling by the Administrative Appeals Court, the evaluation [of the legality of data retention] is completed, and thereby an officialized document. Therefore, it is a public record. It is so ordered…

After this ruling, two things happen with the hypothetical telecoms regulator: their authority’s ruling on mass surveillance is challenged on two accounts, both on the overall legality, and on previous European Supreme Court precedents about the hated data retention applying only to very serious crimes – meaning six months or more in prison, and the data being handed out only after some sort of formal judicial evaluation.

The first, overall challenge is expected to be appealed all the way to the European Supreme Court (European Court of Justice, ECJ), which has already said once the practice is illegal, which makes a lot of people consider the exercise a bit of waste and time – especially considering our hypothetical telecom regulator’s own evaluation in their own authority has already said the same thing.

The second challenge, on data retention applying to serious crimes only, and being opened up only after judicial evaluation, has already been decided at the ECJ. That didn’t stop this particular regulator from requiring ISPs to comply by force anyway – attempting to bypass due process merely by use of superior blunt authority force.

“The Post and Telecom Authority compels the ISP under threat of heavy fines… to hand over surveillance data to the Police or any other authority, where there is a suspicion of crime, regardless of the penalty, if any, for such a crime.”

“This is a typical slippery slope. Initially, we were told data retention was about terrorism and grave crime. Now, the Post and Telecom Authority wants to open up this surveillance to various authorities and solitary policemen having authority to request and require almost whatever they desire”, says Jon Karlung, head of ISP Bahnhof.

In summary, imagine this particular regulator in the small country having been completely at odds with the entire Internet community of that country and Internet’s values for the entirety of their career as a telecom regulator. Imagine they are so against transparency when it works against them, they would rather disappear documents and reports; imagine they are so carefree about due process, they are using their authority power to fine ISPs that don’t crack down on their own customers before the court case challenging their right to do just this is even decided. Would you like to see such a person head up the ICANN of all organizations?

There’s just one catch to this scenario. The person in question isn’t hypothetical.

His name is Göran Marby, and he starts his position as CEO of ICANN in a month, unless ICANN changes its mind between now and then.

Privacy, under such an ICANN, would definitely remain your own responsibility.