[CCWG-ACCT] The big test of effective accountability

[Kieren McCarthy]

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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