[CCWG-ACCT] The big test of effective accountability

[Avri Doria]

Hi,

Whose judgement is the good judgement?

Isn't the process based on our the social compact and doesn't it provide
the means by which we equitably come to understand the community's
judgement?

I do not think the problem with reconsideration and the like is lack of
judgement, but rather that the process excludes certain items from
consideration so that a community judgement, as represented by a Board,
can't be derived.

Personally I am not looking for judgement that is beyond the process. 

Also, I do believe that currently ICANN is run on a CEO top-down notion
of judgement, and the reintroduction and repair of process is what is
needed.  Not more great men of vision.


avri

On 29-Jan-15 08:47, Kieren McCarthy wrote:
> 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
>
>
>
>
> -
> [sent through phone]
>
>
> On Thu, Jan 29, 2015 at 3:45 AM, Bruce Tonkin
> <Bruce.Tonkin at melbourneit.com.au
> <mailto: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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>
>
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