[CCWG-ACCT] Statement of accountability scope and limitations; fact based evidence

[Steve Crocker]

Avri,

Thanks for your  contribution, cogent as always.  My comments in line mostly supportive but differing at some key points.

Steve

On Jul 10, 2015, at 12:15 PM, Avri Doria <avri at acm.org> wrote:

> Hi,
> 
> While I agree that the ''do no harm" adage is applicable, we have to be
> careful to not fall into the  "íf it ain't broke"mentality. 

I’m not sure why “If ain’t broke, don’t fix it” isn’t a perfectly fine mentality.  There are plenty of ways to fix things in the future, even under today’s formulation of ICANN, should the need arise.

> For better or worse, many people believe that NTIA has provided a
> backstop on the Board.  And whether this is true and to what degree it
> is true in various situations, it is a belief that many hold.  If we are
> looking for a fact, that may be one.

You have spoken accurately.  The *fact* is that many *believe* NTIA has provided a backstop.  I assert this effect has been negligible at best.  Moreover, NTIA’s administration of the IANA contract has created more problems of trust than it has solved.  Apparently not many in the community realize how NTIA’s approach toward administering the IANA contract has been inimical to transparency and accountability of the IANA function.  I fully expect that the expiration of the contract will result in improvements transparency and accountability simply because NTIA will no longer be in the loop./

> There is also nervousness about
> what the Board might be like in the future if there were no longer a
> backstop.

You say below it’s not time to get into examples of what has gone wrong in the past.  That’s fine in terms of taking the high road, but I think there are many people who are indeed carrying around angst from what they view as prior bad experience.  That’s ok with me.  I would also recommend we try to document any instances of NTIA’s oversight that actually prevented or corrected anything.  My memory may not be perfect, but I dont know of any.  I’m open to hearing from anyone who can describe how NTIA acted as a backstop in any meaningful way.

> Beyond that, I do not think that this is the time to get into examples
> of what has gone wrong in the past.  We all have our favorite
> Reconsideration, DIDP,  CEP and IRP failure  instances.  Suffice it to
> say there was general agreement that the degree to which the Board rules
> near absolutely at the moment,  with no real way to appeal its decsions,
> does not sit well with the community.

I think there is very broad agreement that having the board handle reconsideration feels wrong, and, more generally, there should be some sort of independent appeals process.  Exactly what this should be is a harder question.  An Independent Review Panel (IRP) looks attractive, but closer examination of the little bit of experience we have with that process raises some difficult questions.  We have seen panels reach arguably poor decisions and have zero accountability.

>  And that the situation just will
> not do, if we are to lose the NTIA backstop.  There are many who think
> that it is better to have NTIA keep the stewardship if we don't improve
> accountability.  We can't suppose that everyone will great a change in
> stewardship with same enthusiasm.  Many of us are uncomfortable with
> un-appealable authority, no matter how benevolent it may appear today. 
> The multistakeholder model is one of participatory democracy

While I agree we need something akin to a judicial function, you have repeated two assertions that aren’t true, at least not as you’ve formulated them in absolute terms.  First, as noted above, NTIA has not functioned as a backstop.  And the board does not have absolute authority.  Board members have limited terms, strong opposition from the community does have an effect, and, in the event the board goes beyond its statutory authority, it can be sued in court.  I think a somewhat clearer presentation of the matter is that many in the community are not satisfied with these avenues of recourse and want stronger, more immediate, and finer-grained forms of recourse.  All of that is understandable, but I think we should recognize that these are improvements in degree, not kind.

> In the analysis done in the early parts of the process, we came up with
> a set of powers the community felt were necessary going forward and at
> this point we are trying to meet those requirements while meeting the
> issues brought by those who submitted comments. 
> 
> For a while we have focused on the Board's accountability , but Jan and
> others point out, we have avoided looking at ourselves and our own
> accountability.  This is especially important if we loosen the degree to
> which the Board can provide oversight over the ACSO structure in our
> various membership models.  Also, discussions of staff accountability to
> the community and especially to the multistakeholder modalities has long
> been an issue and this is a good time to initiate that conversation.
> 
> The focus on our own accountability is important as it leads us to focus
> more on the balance between the volunteer community and Board we
> selected from within our community including the new blood we bring in
> .  It forces us to look at the degree to which one segment of the
> community rules over the other and the mechanisms for assuring that the
> right things occur.  It forces us to ask questions about the balance of
> accountability and the mechanisms of mutual accountability.

Yes.  Thanks.

> Incidentally, I appreciate the effort you and other Board members are
> making to take off your miter's of authority and participate in these
> discussions as members of the community.  As you know that is something
> I would like to see much more of.

Hmm… my wardrobe has never included a miter.   Unless is comes with magical powers of infallibility, I’d shy away from wearing one.

Humor aside, I think you will see greater participation as we move through this critical period.

Steve


> 
> avri
> 
> 
> 
> On 09-Jul-15 14:16, George Sadowsky wrote:
>> The Hippocratic oath, "do no harm," is as relevant to communities and organizations as it is to medicine.  If something is largely working but has flaws, it's reasonable to ask the question of what is the minimum change necessary to eliminate the flaw.
>> 
>> In the case of accountability,  it is clear that accountability is a necessary component of an adequate governance structure. The question in my mind is how much and in what form. I believe that the advisor to the CCWG, Jan Scholte, remarked in an earlier intervention, the issue is accountability for what, to whom, and with what enforcement mechanisms. It's possible that the this easy WG has already provided a concise statement answering these questions. If so, could someone please point me to it; if not wouldn't it be useful to have one?
>> 
>> In that spirit, I'd like to ask members of this group the following question: What specific events and/or activities can you identify In the past on any part of ICANN or its constituent bodies that current accountability mechanisms do not protect from?  how do the variety of current proposals address those shortcomings, and how in the past with these mechanisms have been used to address those specific events and/or activities?  If there already exists such a list, please point me to it; if there isn't wouldn't it be useful for some reality testing?
>> 
>> I am not suggesting that it would be sufficient to engineer new accountability mechanisms that dealt only with previous behavior that was considered inappropriate. Clearly it's very possible that new behavior  by any part of the community considered inappropriate by any other part of the community will fit into new patterns and will not  replicate earlier activities. However, there's a lot of merit in fact-based evidence, and I would like very much to have the opinion of people on this list of those  instances where new accountability measures would have been useful and effective where existing accountability measures failed. 
>> 
>> George
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>> 
> 
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