[CCWG-ACCT] The big test of effective accountability

[Alan Greenberg]

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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