[CCWG-ACCT] The big test of effective accountability

Thu Jan 29 07:48:29 UTC 2015

Hi Kieren,

It is a good point that a culture of accountability and transparency 
would in itself provide a great enhancement to accountability. "Culture 
eats accountability for breakfast", to paraphrase a famous management 
saying ;-)

As far as our group is concerned, we should definitely ensure we take 
this into account. I see two ways of doing so :
- ensuring our stress tests include the risk of paralyzing the 
organisation with processes and legal actions (I think it has been captured)
- assess what kinds of incentives our proposed mechanisms would create. 
That's where the diversity of our group's experience will be extremely 
valuable.

Best
Mathieu

Le 29/01/2015 02:00, Alan Greenberg a écrit :
> 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 <kieren at kierenmccarthy.com 
>> <mailto:kieren at kierenmccarthy.com>>
>> Date: Wednesday, January 28, 2015 at 5:47 PM
>> To: Accountability Cross Community 
>> <accountability-cross-community at icann.org 
>> <mailto: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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>
>
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