[CCWG-ACCT] The big test of effective accountability

Thu Jan 29 13:47:05 UTC 2015

Bruce,

Your response for me highlights the precise problem.

I think you are so embedded in the ICANN staff and Board culture that it seems impossible to look at things differently.

Why should human judgement be a one-off? There was human judgment in the evaluation so now we have to rely on process and legalese?

I would argue, having read some of the evaluations, that the mistakes that have been made were often due to an over-reliance on process rather than good judgement. 

But regardless, that doesn't mean that an appeal has to be entirely process driven. There should be space for someone to say: this was a poor application of the rules. 

The only reason there isn't is because of the overly legal mindset of the organization.

The actual rulings coming from the reconsideration committee contain not a shred of humanity. They are legal briefs designed to maximize the chance of winning in the next process, not efforts to explain that people's concerns have been properly considered.

It is very hard to get out of this mindset once in it. And it becomes hard to believe that most people will let something drop if they feel they have been given a fair hearing.

It's not just the new gTLD process though. It is a cultural thing. And it makes ICANN the corporation unthinking, inflexible, insular, self-justifying and defensive.

Yes, you need process and legal argument to protect the organization. But only as a last step. Not from the get-go.

Aside from the fact it shutters the organization off from the community it is supposed to serve, it is also very expensive and time-consuming.

ICANN even used the cost of constant lawyering to argue that the Merck applications should be shut down. That should have served as an alarm bell but it hasn't because the culture is so endemic.

I could go on with lots of different examples but you get my drift.

Kieren

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[sent through phone]

On Thu, Jan 29, 2015 at 3:45 AM, Bruce Tonkin
<Bruce.Tonkin at melbourneit.com.au> wrote:

> Hello All,
>>>  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.
> One thing to consider here is that with respect to the reconsideration requests applying to many of the new gTLD cases – independent human judgement has already been applied.   My concern though is that in many cases it is a panellist of one that has made the decision.   The Board in general is not expert in the matters of the panellists and it doesn’t seem appropriate for the board to then try to over-ride the independent panel - unless the panelist has failed to consider the right criteria etc.   When we find that a panel hasn't considered all the material - the response is to send it back to another panel to consider.
> In terms of reviewing the new gTLD program – I think it  is useful to consider how an appeals process might work.   It presumably would imply that a larger panel (e.g. 3 or more panellists) is considering an issue.   The concern I would have though is that this will just be invoked by the losing party in every case.   For reconsideration requests we had an appeal for nearly every judgement by the party that lost a judgement.    In general for every case - there was a party that was happy with the decision and a party that wasn't happy.
> I compare this to a jury process in the legal system.   I don’t think you can just ask for another jury to hear the case when the first jury finds against you.   There needs to be some basis for the appeal other than that you disagree with the initial finding.
> The Board is actually very keen to improve the reconsideration process, and also keen to ensure that the Board itself is not trying to over-ride independent panels .   I think the right approach in many of these cases is to make sure that appropriate appeals are built in the relevant process - whether it is new gTLDs or ccTLD re-delegations etc.
> So careful work is needed to ensure that we have a process that ensures independent reviews of decisions, and also appropriate criteria to initiate a review of a decision.
> Regards,
> Bruce Tonkin
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