[CCWG-ACCT] The big test of effective accountability

[Roelof Meijer]

Kieren,

I am sure that many, especially legal professionals, consider ‚legal judgement’ to be part of the wider concept of ‚human judgement’ (where, although not a native speaker, I think that ‚human’ should not (always) be considered equalling ‚humane’)
Members of the legal profession (which clearly I am not) might even consider legal judgment to be a developed version of human judgement…

And I take it that with „ICANN is a slave to process and legal judgement” you do not have the intention to state a fact, but an opinion.

Cheers,

Roelof

From: Kieren McCarthy <kieren at kierenmccarthy.com<mailto:kieren at kierenmccarthy.com>>
Date: woensdag 28 januari 2015 23:47
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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