[CCWG-ACCT] The big test of effective accountability
Alan Greenberg
alan.greenberg at mcgill.ca
Thu Jan 29 01:00:51 UTC 2015
As I read Kieren's message, he was advocating
that the original decisions be made using more
human judgement, not only reconsiderations.
Perhaps harder to accomplish...
Alan
At 28/01/2015 07:55 PM, Steve DelBianco wrote:
>Yep, the new accountability regime must go
>beyond just whether ICANN management followed
>the prescribed process, which is all that a
>Reconsideration Request is supposed to consider.
>
>So let's expand the criteria that independent
>review panels can use, so that humans will
>review a board/management decision on substantive questions of judgement.
>
>
>Steve DelBianco
>Execuutive Director
>NetChoice
><http://www.netchoice.org/>http://www.NetChoice.org
>and <http://blog.netchoice.org/>http://blog.netchoice.org
>+1.202.420.7482
>
>
>
>From: Kieren McCarthy
><<mailto:kieren at kierenmccarthy.com>kieren at kierenmccarthy.com>
>Date: Wednesday, January 28, 2015 at 5:47 PM
>To: Accountability Cross Community
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: [CCWG-ACCT] The big test of effective accountability
>
>Hello all,
>
>I've been giving a lot thought to effective
>accountability of ICANN and came across an idea
>that I don't think has been properly considered
>and which may make the difference between
>getting it right this time or spending the next
>decade fighting over yet more iterations of more structures and processes.
>
>And that is: human judgement.
>
>Namely that we have to acknowledge and agree
>upon and protect the concept of human judgement within accountability of ICANN.
>
>Currently ICANN is a slave to process and legal
>judgement. Everything goes first through
>process. If one process fails, there is another
>process to go through. If that fails, another
>process. If you run out of processes, you create
>a new process (as happened most famously with
>the ICM Registry independent review win, and
>with the GAC advice / ICANN Board impasse).
>
>Tied in with this process-over-decision approach
>is the fact that everything goes down a legal and legalistic route.
>
>The further down a path something goes - which
>almost always means that a wrong decision has
>been made - the more legalistic it becomes.
>Pretty soon the actual point and argument is almost entirely lost.
>
>This is clear in minutes of Board meetings in
>ICANN. As the group approaches an actual
>decision, the information around it, perversely,
>grows shorter and more vague. This is solely
>because of the lawyer mindset. What should
>happen is that information becomes clear and more plentiful.
>
>This legalistic approach also rapidly becomes
>prosecutorial. Rather than talking through a
>compromise or reaching understanding between
>parties it becomes more and more of a fight.
>
>ICANN corporate grows increasingly aggressive;
>the other side either drops out or is forced to
>fight to the bitter end. The end result is that
>everyone loses trust in ICANN. It is seen to be
>protecting only itself rather than looking out for the broader public interest.
>
>Just look at the recent Reconsideration
>Committee decision over dot-gay. Yes, it has
>asked for a re-evaluation but on the most narrow
>terms. Nearly all of dot-gay's complaints were
>dismissed in purely legalistic terms, rather than human judgement.
>
>The process was followed. Therefore it is
>legally justifiable. Therefore we will not
>consider anything outside of that because it might represent a legal threat.
>
>But if you take the legal goggles off, the
>dot-gay community decision was clearly a poor
>one. And so it should be possible to look at
>what happened and say: there was a mistake here, let's fix it.
>
>It gets to the point where ICANN is afraid to
>admit mistakes because it sees everything in
>terms of legal risk. The tail waking the dog.
>
>This also happened to an absurd degree with
>dot-inc, dot-llc and dot-llp - where the company
>had to go and get an emergency panelist to force
>ICANN to halt the auction for the domains while
>its complaints were considered.
>
>This is what happens if you do not allow for
>human judgement in a process - it becomes
>increasingly difficult and rancorous and legal.
>
>I would argue that legal arguments should be
>used only where human communication has failed
>to achieve resolution. But in ICANN, the legal
>approach comes first and as a result any attempt
>to achieve human communication is quickly excluded.
>
>And before all the lawyers start jumping in: the
>legal system itself has huge in-built (and protected) human judgement systems.
>
>Juries are the best example. They can listen to
>legal arguments, they can even be directed by
>judges, but ultimately they get to made a human
>decision based on their own considerations (and biases).
>
>Judges also are hugely human in their judgement.
>They decide issues based on what they think of
>the defendant - and often the lawyers.
>
>The problem with ICANN is we have the worst of
>both worlds. The Board sits as the judge and
>jury. There is very little human element of
>judgement before the case ends up in a legal
>process, and there is almost no human element within that legal process.
>
>So if we want to see what I think will look like
>real accountability to the internet community,
>it will be to build - and protect - human
>processes, where people are get to make
>decisions using the facets of intuition, reason, compassion and understanding.
>
>Rather than view everything as a threat to be
>defended against, ICANN needs to view its
>community as exactly that - a community.
>
>My two (six) cents.
>
>
>
>Kieren
>
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