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
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 Executive 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@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> Date: Wednesday, January 28, 2015 at 5:47 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@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
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@kierenmccarthy.com>kieren@kierenmccarthy.com> Date: Wednesday, January 28, 2015 at 5:47 PM To: Accountability Cross Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I have a lot of sympathy for Kieran's argument because it goes to the issue of ICANN's culture. As an organisation, the notions of stewardship, humbleness, service, openness and curiosity really don't seem to be endemic. If they were, and were the markers of people's behaviour, that would be a very different world. Jordan On 29 January 2015 at 14:00, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
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 +1.202.420.7482
From: Kieren McCarthy < kieren@kierenmccarthy.com> Date: Wednesday, January 28, 2015 at 5:47 PM To: Accountability Cross Community < accountability-cross-community@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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
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@kierenmccarthy.com <mailto:kieren@kierenmccarthy.com>> Date: Wednesday, January 28, 2015 at 5:47 PM To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
On 1/28/15 11:48 PM, Mathieu Weill wrote:
- ensuring our stress tests include the risk of paralyzing the organisation with processes and legal actions (I think it has been captured)
It has. See #3 and #7 from my initial summary, covering public and private litigation risks, respectively, #12 and #13 from Mathieu Weill's edit on the same summary, covering generic capture and accountability specific paralysis, respectively. Eric Brunner-Williams Eugene, Oregon
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
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@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
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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@melbourneit.com.au <mailto:Bruce.Tonkin@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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 1/29/15 6:10 AM, Avri Doria wrote:
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.
Seconded. And to comment substantively on Kieren's comment, the Green and White Papers proposed to transform a monopoly, arising from the competitive tender resulting in the transfer of th NIC function from SRI to a small company in Virginia, to a competitive market. The USG did not carry out steps sufficient to substantively reduce the market power of the incumbent monopoly operator, which reasonably used its market powers, its position as the sole source of sufficient revenues, and its access to the American legal system to ensure the preservation of its market power. Complaining about the Courts and the formalism of legal proceedings without recognizing the ability of parties with substantial resources -- starting with the government's former single-source supplier of domain services for most of the rfc1951 namespaces not delegated to "Friends of Jon" -- to initiate suits (and in particular, to trigger the test of whether or not the Corporation is, or is not, exercising rule making authority delegated by an agency of Government) mistakes the effect for the cause. Eric Brunner-Williams Eugene, Oregon
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively. 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. [...] 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. There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
On 29/01/2015 14:38, Kieren McCarthy wrote:
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
It was introduced as part of the discussion about what "public interest" meant in the ICANN context. http://mm.icann.org/pipermail/accountability-cross-community/2014-December/0...
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote: > In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
> 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. [...] > 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively. 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. [...] 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. There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “*yes, the Board can be overruled but only on issues of process*.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 11:17 AM *To:* Jonathan Zuck
*Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 9:39 AM *To:* Malcolm Hutty *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote:
Kieren,
That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a /single/ accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place.
JZ
*From:*Kieren McCarthy [mailto:kierenmccarthy@gmail.com] *Sent:* Thursday, January 29, 2015 1:57 PM *To:* McAuley, David *Cc:* Jonathan Zuck; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process?
* Were you happy with the outcome?
* Did you feel your points were understand and considered?
* What would have improved the process for you?
* If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “/yes, the Board can be overruled but only on issues of process/.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 11:17 AM *To:* Jonathan Zuck
*Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org>> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 9:39 AM *To:* Malcolm Hutty *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote: > In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
> 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. [...] > 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <http://publicaffairs.linx.net/>
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time. So let’s please agree to explore better mechanisms to hold the board/management accountable to the community. That IS our charter. We aren’t talking about lots of new processes or complex structures. It helps to think of Members as a permanent cross-community working group, with just a few enumerated powers to overturn Board / management decisions. Remember, this IANA transition is perhaps the last time the community will have the leverage to get ICANN to accept better accountability mechanisms. Steve DelBianco From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Date: Thursday, January 29, 2015 at 4:34 PM To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim? Eric Brunner-Williams Eugene, Oregon
On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net
wrote:
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party." https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-... duckduckgo.com is often your friend. Jordan -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
Steve, Jordan, and anyone else so inclined, Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed? I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011... Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC? Eric Brunner-Williams Eugene, Oregon On 1/29/15 2:14 PM, Jordan Carter wrote:
On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> wrote:
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party."
https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-...
duckduckgo.com <http://duckduckgo.com> is often your friend.
Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter
/To promote the Internet's benefits and uses, and protect its potential./
Eric: I think the USG would be highly displeased. For what it is worth, I think that the accountability created by the NTIA contract, and the fact that the USG is seeking to end that arrangement, is why we are all having this conversation in the first place. Without the contract, what do you think the USG would do? The point is not whether the Board intends or does not intend to end the AOC. I have no doubt it has no such desire. The point is, in the post-NTIA-contract world, what would we want to be able to do about it? best Jordan On 30 January 2015 at 11:30, Eric Brunner-Williams <ebw@abenaki.wabanaki.net
wrote:
Steve, Jordan, and anyone else so inclined,
Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed?
I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011...
Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC?
Eric Brunner-Williams Eugene, Oregon
On 1/29/15 2:14 PM, Jordan Carter wrote:
On 30 January 2015 at 11:07, Eric Brunner-Williams < ebw@abenaki.wabanaki.net> wrote:
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party."
https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-...
duckduckgo.com is often your friend.
Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*To promote the Internet's benefits and uses, and protect its potential.*
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
Exactly. How would NTIA re-tender the IANA functions contract after it ceases to be a counter-party post-transition? This is precisely why our CCWG Accountability exists. The AoC is voluntary and unless the key accountability & transparency components are incorporated into the by-laws (among other reforms) BEFORE transition, there will be nothing holding ICANN to those commitments AFTER transition. Is this not apparent? Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Thursday, January 29, 2015 5:41 PM To: Eric Brunner-Williams Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Eric: I think the USG would be highly displeased. For what it is worth, I think that the accountability created by the NTIA contract, and the fact that the USG is seeking to end that arrangement, is why we are all having this conversation in the first place. Without the contract, what do you think the USG would do? The point is not whether the Board intends or does not intend to end the AOC. I have no doubt it has no such desire. The point is, in the post-NTIA-contract world, what would we want to be able to do about it? best Jordan On 30 January 2015 at 11:30, Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> wrote: Steve, Jordan, and anyone else so inclined, Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed? I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011... Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC? Eric Brunner-Williams Eugene, Oregon On 1/29/15 2:14 PM, Jordan Carter wrote: On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> wrote: On 1/29/15 1:58 PM, Steve DelBianco wrote: Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time. Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party." https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-... duckduckgo.com<http://duckduckgo.com> is often your friend. Jordan -- Jordan Carter Chief Executive InternetNZ 04 495 2118<tel:04%20495%202118> (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential.
Hi, Right, and that is why instead of abandoning them as ZERO, we need to get them into the by-laws with a sticky bit. avri On 29-Jan-15 17:45, Drazek, Keith wrote:
Exactly.
How would NTIA re-tender the IANA functions contract after it ceases to be a counter-party post-transition? This is precisely why our CCWG Accountability exists.
The AoC is voluntary and unless the key accountability & transparency components are incorporated into the by-laws (among other reforms) BEFORE transition, there will be nothing holding ICANN to those commitments AFTER transition.
Is this not apparent?
Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Jordan Carter *Sent:* Thursday, January 29, 2015 5:41 PM *To:* Eric Brunner-Williams *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Eric:
I think the USG would be highly displeased.
For what it is worth, I think that the accountability created by the NTIA contract, and the fact that the USG is seeking to end that arrangement, is why we are all having this conversation in the first place.
Without the contract, what do you think the USG would do?
The point is not whether the Board intends or does not intend to end the AOC. I have no doubt it has no such desire.
The point is, in the post-NTIA-contract world, what would we want to be able to do about it?
best
Jordan
On 30 January 2015 at 11:30, Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> wrote:
Steve, Jordan, and anyone else so inclined,
Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed?
I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011...
Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC?
Eric Brunner-Williams Eugene, Oregon
On 1/29/15 2:14 PM, Jordan Carter wrote:
On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> wrote:
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party."
https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-...
duckduckgo.com <http://duckduckgo.com> is often your friend.
Jordan
--
Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 <tel:04%20495%202118> (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter
/To promote the Internet's benefits and uses, and protect its potential./
--
Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter
/To promote the Internet's benefits and uses, and protect its potential./
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Agreeing with Keith and Jordan. (Sidebar: Atho it may not be appropriate to introduce here, we should consider some persistent rights for NTIA post transition, such as: Would they have the ability to review or block future re-delations of IANA, if ICANN (or whomever) attempted this a few years after the transition? If not, how can we ensure that the principles in the March 2014 announcement follow any future delegations/redelegations?) Thank you, J. ____________ James Bladel GoDaddy On Jan 29, 2015, at 16:47, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Exactly. How would NTIA re-tender the IANA functions contract after it ceases to be a counter-party post-transition? This is precisely why our CCWG Accountability exists. The AoC is voluntary and unless the key accountability & transparency components are incorporated into the by-laws (among other reforms) BEFORE transition, there will be nothing holding ICANN to those commitments AFTER transition. Is this not apparent? Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Thursday, January 29, 2015 5:41 PM To: Eric Brunner-Williams Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Eric: I think the USG would be highly displeased. For what it is worth, I think that the accountability created by the NTIA contract, and the fact that the USG is seeking to end that arrangement, is why we are all having this conversation in the first place. Without the contract, what do you think the USG would do? The point is not whether the Board intends or does not intend to end the AOC. I have no doubt it has no such desire. The point is, in the post-NTIA-contract world, what would we want to be able to do about it? best Jordan On 30 January 2015 at 11:30, Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> wrote: Steve, Jordan, and anyone else so inclined, Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed? I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011... Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC? Eric Brunner-Williams Eugene, Oregon On 1/29/15 2:14 PM, Jordan Carter wrote: On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> wrote: On 1/29/15 1:58 PM, Steve DelBianco wrote: Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time. Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party." https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-... duckduckgo.com<http://duckduckgo.com> is often your friend. Jordan -- Jordan Carter Chief Executive InternetNZ 04 495 2118<tel:04%20495%202118> (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
James, No going to happen! Either Transition or not. You may have jumped the gun here, by the way. I was expecting this to be sprung on us later :-)-O el On 2015-01-30 02:36, James M. Bladel wrote:
Agreeing with Keith and Jordan.
(Sidebar: Atho it may not be appropriate to introduce here, we should consider some persistent rights for NTIA post transition, such as: Would they have the ability to review or block future re-delations of IANA, if ICANN (or whomever) attempted this a few years after the transition? If not, how can we ensure that the principles in the March 2014 announcement follow any future delegations/redelegations?)
Thank you,
J. ____________ James Bladel GoDaddy [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Eric — Your first question helps make my point: After the USG lets of of IANA contract leverage, there is nothing they could do to hold ICANN to the Affirmation of Commitments. As to your second question: Within a year of signing the AoC, Peter Dengate Thrush told a group of EU Representatives that he saw the Affirmation as a temporary arrangement ICANN would like to eventually terminate. (22-Jun-2010, at a dinner hosted by the European Internet Foundation in Brussels). At a breakfast with the entire Board the next day, I asked ICANN board members if the commitments in the Affirmation should be permanently adopted as part of ICANN's official charter. One board member immediately disagreed, saying the AoC made no commitments that weren't already in ICANN's bylaws. I responded that the Affirmation includes important new commitments in paragraphs 3, 4, 7, and 8 – even before we get to the periodic reviews required in paragraph 9. From: Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> Date: Thursday, January 29, 2015 at 5:30 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability Steve, Jordan, and anyone else so inclined, Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed? I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011... Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC? Eric Brunner-Williams Eugene, Oregon On 1/29/15 2:14 PM, Jordan Carter wrote: On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> wrote: On 1/29/15 1:58 PM, Steve DelBianco wrote: Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time. Would you be so kind as to offer support for this ... peculiar claim? From section 11 of the AOC: "Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party." https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-... duckduckgo.com<http://duckduckgo.com> is often your friend. Jordan -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential.
Steve, Nothing? There remains the role of the USG, and its contractor, Verisign, as two of the three parties to the Root Zone Partners. There remains the NRO with its increasing distinct stewardship responsibility. There remains the IETF/IAB with its increasing distinct stewardship responsibility. As hypos this, and your flight-to-avoid-jurisdiction, may be fun and games speculatively, though not rising to the level of "gunmen menace the periodic review team" of the ALAC scenarios, but it assumes either wild wrecklessness on the part of some fairly sane people -- ICANN blows off the IP and DNS components of what is a semi-stable troika, or sudden onset blindness on the part of some fairly sane people -- the IP and DNS components blithly following an erratic executive shredding accountability agreements. There are less unlikely scenarios that deserve more attention. As for Peter, in the course of his many years as Board Chair he's said many things, some right and some wrong. The Board has a liaison and his expression in the present would be pertinent, that of a past member of the Board only possibly informative. Eric Brunner-Williams Eugene, Oregon On 1/29/15 2:47 PM, Steve DelBianco wrote:
Eric — Your first question helps make my point: After the USG lets of of IANA contract leverage, there is nothing they could do to hold ICANN to the Affirmation of Commitments.
As to your second question:
Within a year of signing the AoC, Peter Dengate Thrush told a group of EU Representatives that he saw the Affirmation as a temporary arrangement ICANN would like to eventually terminate. (22-Jun-2010, at a dinner hosted by the European Internet Foundation in Brussels).
At a breakfast with the entire Board the next day, I asked ICANN board members if the commitments in the Affirmation should be permanently adopted as part of ICANN's official charter. One board member immediately disagreed, saying the AoC made no commitments that weren't already in ICANN's bylaws. I responded that the Affirmation includes important new commitments in paragraphs 3, 4, 7, and 8 – even before we get to the periodic reviews required in paragraph 9.
From: Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> Date: Thursday, January 29, 2015 at 5:30 PM To: Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability
Steve, Jordan, and anyone else so inclined,
Would you care to offer your best guess(es) as to the response of the Government of the United States were the Corporation to engage in the course of conduct proposed?
I suspect it would look suspiciously similar to something we've seen before, http://www.ntia.doc.gov/files/ntia/publications/fr_ianafunctionsnoi_02252011...
Have either of you (or others sharing the concern expressed by Steve and Jordan) any indication that the Board is or ever has considered unilateral termination of the AoC?
Eric Brunner-Williams Eugene, Oregon
On 1/29/15 2:14 PM, Jordan Carter wrote:
On 30 January 2015 at 11:07, Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> wrote:
On 1/29/15 1:58 PM, Steve DelBianco wrote:
Okay, so Jonathan exaggerated a bit by saying we have zero accountability today. But Avri admits we have no mechanisms that are binding on the board. And Avri cites the AoC, which can be canceled by ICANN at any time.
Would you be so kind as to offer support for this ... peculiar claim?
From section 11 of the AOC:
"Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party."
https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-...
duckduckgo.com <http://duckduckgo.com> is often your friend.
Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter
/To promote the Internet's benefits and uses, and protect its potential./
The Board has a liaison and his expression in the present would be pertinent, that of a past member of the Board only possibly informative.
There is no basis for such a dismissal. That such a sentiment (the AoC is temporary and should be terminated) could be expressed at one time by the Board Chair, without censure, means it can be revived when convenient. Without appropriate accountability, the AoC can be terminated without the threat of consequences that perhaps prevented the action when it was first considered. I do not envision that an accountability process is being designed simply to deal with best-case scenarios. - Evan
I tend to agree with Avri's thoughts. What Bruce described is basically the communities creation,it might not be possible to get a one size fits it all within a multilingual and multicultural environment such as ICANN's,that said i would appreciate a concrete proposal from Kieren. Best Regards On 1/30/15, Evan Leibovitch <evan@telly.org> wrote:
The Board has a liaison and his expression in the present would be pertinent, that of a past member of the Board only possibly informative.
There is no basis for such a dismissal. That such a sentiment (the AoC is temporary and should be terminated) could be expressed at one time by the Board Chair, without censure, means it can be revived when convenient. Without appropriate accountability, the AoC can be terminated without the threat of consequences that perhaps prevented the action when it was first considered.
I do not envision that an accountability process is being designed simply to deal with best-case scenarios.
- Evan
-- Barrack O. Otieno +254721325277 +254-20-2498789 Skype: barrack.otieno http://www.otienobarrack.me.ke/
Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri
On 29-Jan-15 14:14, Jonathan Zuck wrote:
Kieren,
That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place.
JZ
From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process?
* Were you happy with the outcome?
* Did you feel your points were understand and considered?
* What would have improved the process for you?
* If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck
Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Ok, if I was back in Model UN, I would argue that non-binding accountability is not accountability but since we all have lives and have a charter to come up with a type of accountability we all agree we do NOT have, I guess my only point is let's focus on getting that in place. Is Marco Polo worth getting into? From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain Sent: Thursday, January 29, 2015 4:59 PM To: Avri Doria Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The big test of effective accountability Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing "accountability" mechanisms, there are, in fact, none. It's a complete red herring to explore them as part of this process. There are plenty of opportunities to "vent" but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous "elect a different board." No one wants to hear that but it's the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: "yes, the Board can be overruled but only on issues of process." It's actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests - but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel's decision or leave it - it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN's subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA's favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I'm somewhat hesitant to speak up given Malcolm's excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn't a way to trigger the group "rethinking" an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat "legal" accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the "community" is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be "human" as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we've followed it. Instead, we present the board with unfinished work, expect them to "rule" on it and threaten to sue if we don't get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there's a lot to Kieren's concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I'm ready for us to tackle it. All that said, it's not really relevant to the task at hand. Obviously this whole situation has us "navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>," and that's not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, Model UN, now I understand the problem You did model UN. Polite hyperbola is the rule. My issue is that if we don't recognize the mechanisms we have, albeit imperfect, we can't fix them To say we have none means we need to start from scratch, and that would be unfortunate. We have a lot to build on. I also disagree with the notion that we need just OFS - one [fundamental] source - of accountability. We need a system of checks and balances with some binding bits. That is why in the other CWG I am against nuclear options as the only defense, it is so messy having only a sledge hammer when there are tasks to be done around the house. avri On 29-Jan-15 17:28, Jonathan Zuck wrote:
Ok, if I was back in Model UN, I would argue that non-binding accountability is /not/ accountability but since we all have lives and have a charter to come up with a type of accountability we all agree we do NOT have, I guess my only point is let’s focus on getting that in place.
I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au> wrote:
Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work.
Cheers,
Chris
On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri
On 29-Jan-15 14:14, Jonathan Zuck wrote:
Kieren,
That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a *single* accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place.
JZ
*From:* Kieren McCarthy [mailto:kierenmccarthy@gmail.com <kierenmccarthy@gmail.com>] *Sent:* Thursday, January 29, 2015 1:57 PM *To:* McAuley, David *Cc:* Jonathan Zuck; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process?
* Were you happy with the outcome?
* Did you feel your points were understand and considered?
* What would have improved the process for you?
* If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “*yes, the Board can be overruled but only on issues of process*.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 11:17 AM *To:* Jonathan Zuck
*Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 9:39 AM *To:* Malcolm Hutty *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote:
I don't like this line about the Reconsideration Committee not being "understood", Chris.
ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time.
This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed.
There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded.
If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee".
Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented).
Kieren
On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work.
Cheers,
Chris
On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri
On 29-Jan-15 14:14, Jonathan Zuck wrote:
Kieren,
That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a /single/ accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place.
JZ
*From:*Kieren McCarthy [mailto:kierenmccarthy@gmail.com] *Sent:* Thursday, January 29, 2015 1:57 PM *To:* McAuley, David *Cc:* Jonathan Zuck; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process?
* Were you happy with the outcome?
* Did you feel your points were understand and considered?
* What would have improved the process for you?
* If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “/yes, the Board can be overruled but only on issues of process/.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 11:17 AM *To:* Jonathan Zuck
*Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org>> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kieren McCarthy *Sent:* Thursday, January 29, 2015 9:39 AM *To:* Malcolm Hutty *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote: > In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
> 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. [...] > 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> > wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis> ,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> > wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis> ,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Indeed Sent from my Windows Phone ________________________________ From: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com> Sent: 1/30/2015 3:29 PM To: 'McAuley, David'<mailto:dmcauley@verisign.com>; 'Accountability Cross Community'<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "'McAuley, David'" <dmcauley@verisign.com<mailto:dmcauley@verisign.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability Indeed Sent from my Windows Phone ________________________________ From: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com> Sent: 1/30/2015 3:29 PM To: 'McAuley, David'<mailto:dmcauley@verisign.com>; 'Accountability Cross Community'<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely. Robin On Jan 30, 2015, at 12:39 PM, David W. Maher wrote:
+1 David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849
From: Jonathan Zuck <JZuck@actonline.org> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, "'McAuley, David'" <dmcauley@verisign.com>, 'Accountability Cross Community' <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability
Indeed
Sent from my Windows Phone From: Paul Rosenzweig Sent: 1/30/2015 3:29 PM To: 'McAuley, David'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability
Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs.
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key
From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
That is how the DCA Trust IRP panel seemed to see it, Paul.
Bylaw Art. IV, Section 3.6 says this:
There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.
It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …”
Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August:
114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...)
To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision.
To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far.
David
From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
David
Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented.
Or am I misreading what you are saying? Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key
From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases.
The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...):
“The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.”
David
From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Hi,
And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us.
The fact that those recommendations lingered is indeed why we need the binding bits.
So often we come close, yet at the last minute we let something go undone and the work gets lost.
Stuff like this needs fixing.
avri
On 29-Jan-15 17:37, Kieren McCarthy wrote:
I don't like this line about the Reconsideration Committee not being "understood", Chris.
ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time.
This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed.
There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded.
If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee".
Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented).
Kieren
On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work.
Cheers,
Chris
On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri
On 29-Jan-15 14:14, Jonathan Zuck wrote:
Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ
From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote:
Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck
Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote:
I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote: > In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
> 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. [...] > 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of "implemented or committed to" is too loose and ought not to be changed to "implemented" .. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Robin Gross [mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely. Robin On Jan 30, 2015, at 12:39 PM, David W. Maher wrote: +1 David W. Maher Senior Vice President - Law & Policy Public Interest Registry 312 375 4849 From: Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >, "'McAuley, David'" <dmcauley@verisign.com>, 'Accountability Cross Community' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] The big test of effective accountability Indeed Sent from my Windows Phone _____ From: Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> Sent: 1/30/2015 3:29 PM To: 'McAuley, David' <mailto:dmcauley@verisign.com> ; 'Accountability Cross Community' <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: "There shall be ." Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN's longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug 14-en.pdf) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding "failed to implement," I would say failed so far. I think Avri's term "lingering" is a good one - this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I've read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have "a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work" to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug 14-en.pdf): "The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant." David From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing "accountability" mechanisms, there are, in fact, none. It's a complete red herring to explore them as part of this process. There are plenty of opportunities to "vent" but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous "elect a different board." No one wants to hear that but it's the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> > wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: "yes, the Board can be overruled but only on issues of process." It's actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests - but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel's decision or leave it - it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN's subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA's favor. . David McAuley From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > wrote: I'm somewhat hesitant to speak up given Malcolm's excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn't a way to trigger the group "rethinking" an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat "legal" accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the "community" is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be "human" as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we've followed it. Instead, we present the board with unfinished work, expect them to "rule" on it and threaten to sue if we don't get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there's a lot to Kieren's concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I'm ready for us to tackle it. All that said, it's not really relevant to the task at hand. Obviously this whole situation has us "navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis> ," and that's not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
In my view the new bylaw provisions must be adopted, the new implementing bodies must be established and populated, and the enhanced enforcement measures must be implemented and available prior to the transition. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Jan 30, 2015, at 10:38 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of “implemented or committed to” is too loose and ought not to be changed to “implemented” …. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Robin Gross [mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely. Robin On Jan 30, 2015, at 12:39 PM, David W. Maher wrote: +1 David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "'McAuley, David'" <dmcauley@verisign.com<mailto:dmcauley@verisign.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability Indeed Sent from my Windows Phone ________________________________ From: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com> Sent: 1/30/2015 3:29 PM To: 'McAuley, David'<mailto:dmcauley@verisign.com>; 'Accountability Cross Community'<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" (http://en.wikipedia.org/wiki/Chinese_whispers). There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2". Based on my review of the documents and my personal involvement, the sequence was: - ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms. - That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013. - DCA served notice of the intent to seek relief before an IRP on 19 August 2013. - For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group. Alan At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
In my view we should not waste so much correspondence on what is a technicality in the end, wether the committee is standing or or not, but on the deeper issues. Why are they doing whatever they want? And how can we stop this. el Sent from Dr Lisse's iPad mini
On Jan 31, 2015, at 08:40, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" (http://en.wikipedia.org/wiki/Chinese_whispers).
There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2".
Based on my review of the documents and my personal involvement, the sequence was:
- ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms.
- That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013.
- DCA served notice of the intent to seek relief before an IRP on 19 August 2013.
- For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group.
Alan
At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
So you are saying that a bylaw mandate has gone unfulfilled for 21 months. Does that comfort you? -- Paul Sent from myMail app for Android Saturday, 31 January 2015, 01:40AM -05:00 from Alan Greenberg <alan.greenberg@mcgill.ca>: I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" ( http://en.wikipedia.org/wiki/Chinese_whispers ). There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2". Based on my review of the documents and my personal involvement, the sequence was: - ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms. - That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013. - DCA served notice of the intent to seek relief before an IRP on 19 August 2013. - For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group. Alan At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
Dear All, I thank you all very much for your sound , meaningful and valid arguments. The discussion is reach and valuable. I suggest we agree to establish or confirm the need to have "Srtanding Panel" with the meaning that it is a permanent structure . As for the membership of that Standing Panel, further discussions are required . Currently ,based on the studies carried out by ICG, there are 13 Communities thus I do not understand where the " 9 members ) coming from We also need to examine whether all 13 or whatever number of communities we agree would have equal footing or there may be some exceptions for SO and AC We also need to confirm that an IPR is required We need to formally indicate why some elements 7 provisions of Bylaw have not been implemented. We need to mention that Recommendation( s) of current ATRT and outcome of Idependent Reviewe Panel shall be implemented unless Stnading Panel is convinced with the valid arguments and associated logic provided by the ICANN Board SUCH rECOMMENDATIONS WITH THE EXISTING LANGUAGE AND TERMS ARE NOT IMPLEMENTABLE AND NEED TO BE FURTHER AMENDED . May we kindly take a darft structure based on what has been discussed and futher improve that structure Regards Kavouss 2015-01-31 14:41 GMT+01:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
So you are saying that a bylaw mandate has gone unfulfilled for 21 months. Does that comfort you?
-- Paul Sent from myMail app for Android
Saturday, 31 January 2015, 01:40AM -05:00 from Alan Greenberg < alan.greenberg@mcgill.ca>:
I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" ( http://en.wikipedia.org/wiki/Chinese_whispers ).
There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2".
Based on my review of the documents and my personal involvement, the sequence was:
- ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms.
- That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013.
- DCA served notice of the intent to seek relief before an IRP on 19 August 2013.
- For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group.
Alan
At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul, I did not say that. I corrected the multiple errors of fact in the sound-bite. I have a quirky position that I like to make decisions based on fact and not innuendo or hyperbole. I have no idea whether the panel has since been convened or not - I have not checked. If something the Board is obliged to do goes undone and if there is not a sound rationale for taking that path, it does not comfort me. But that is not the same as deliberately failing to do something for years and that has been cited in multiple ATRT reports. Alan At 31/01/2015 08:41 AM, Paul Rosenzweig wrote:
So you are saying that a bylaw mandate has gone unfulfilled for 21 months. Does that comfort you?
-- Paul Sent from myMail app for Android
Saturday, 31 January 2015, 01:40AM -05:00 from Alan Greenberg <alan.greenberg@mcgill.ca>:
I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" ( http://en.wikipedia.org/wiki/Chinese_whispers ).
There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2".
Based on my review of the documents and my personal involvement, the sequence was:
- ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms.
- That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013.
- DCA served notice of the intent to seek relief before an IRP on 19 August 2013.
- For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group.
Alan
At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
Fair enough -- then without the sound bite -- the Board has failed in what appears to me to be a mandatory duty. That disturbs me greatly ..... **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] Sent: Saturday, January 31, 2015 10:53 AM To: Paul Rosenzweig Cc: Robin Gross; Accountability Cross Community Subject: Re[2]: [CCWG-ACCT] The big test of effective accountability Paul, I did not say that. I corrected the multiple errors of fact in the sound-bite. I have a quirky position that I like to make decisions based on fact and not innuendo or hyperbole. I have no idea whether the panel has since been convened or not - I have not checked. If something the Board is obliged to do goes undone and if there is not a sound rationale for taking that path, it does not comfort me. But that is not the same as deliberately failing to do something for years and that has been cited in multiple ATRT reports. Alan At 31/01/2015 08:41 AM, Paul Rosenzweig wrote:
So you are saying that a bylaw mandate has gone unfulfilled for 21 months. Does that comfort you?
-- Paul Sent from myMail app for Android
Saturday, 31 January 2015, 01:40AM -05:00 from Alan Greenberg <alan.greenberg@mcgill.ca>:
I'm all for calling the Board out when they have messed up. But let's work with facts and not those developed through a game of "broken telephone" ( http://en.wikipedia.org/wiki/Chinese_whispers ).
There is no doubt that the Board neglected to quickly name the standing panel, but it was not "unexecuted for years", nor was the failure "called out in ATRT1 and ATRT2".
Based on my review of the documents and my personal involvement, the sequence was:
- ATRT1 Recommendation 23 called for a review of the IRP as well other review mechanisms.
- That was done and as a result, new Bylaws were approved which did call for the Board to appoint a standing panel. Those Bylaws went into effect 11 April 2013.
- DCA served notice of the intent to seek relief before an IRP on 19 August 2013.
- For reasons unrelated to the DCA action, ATRT2 (of which I was a member and vice-chair) in its recommendations issued on 31 December 2013 recommended that ICANN should convene a Special Community Group to discuss options for improving Board accountability with regard to restructuring of the Independent Review Process (IRP) and the Reconsideration Process (ATRT2 Recommendation 9.2). The CCWG-Accountability is that group.
Alan
At 30/01/2015 10:37 PM, Paul Rosenzweig wrote:
..... Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. ....
Hi, Several people have mentioned the ASEP recommendations A list of these can be found on page 10 of the enclosed report. Specifically: RECONSIDERATION * Improve access - add claims for consideration of inaccurate material information///(bylaws were changed to include this, don't know whether practice has caught up yet)/ * Define key terms, such as “material information”, “materially harmed” * Modify time limits for submissions * Include terms and conditions in request form * Allow for urgent review in place of stay * Allow for summary dismissal when warranted * Allow “class” filings/consolidation * Require allegations of standing Independent Review * Create omnibus standing panel/(As people have said the bylaws were changed for this.)/ * Define key terms * Introduce optional cooperative engagement and conciliation phases to narrow issues and improve efficiency * Require submission form with terms and conditions * Introduce: (i) time limits for filing and decision; (ii) and page limitations ATRT2 From the report: With regard to restructuring review mechanisms, an Accountability Structures Expert Panel (ASEP) was commissioned in September 2012. It included three international experts on issues of corporate governance, accountability and international dispute resolution. The ASEP reported on October 2012 and the Board acted upon its recommendations on 20 December 2012, approving amendments to bylaws Article IV, Section 2[80] (Reconsideration), Section 3[81] (Independent Review), and the corresponding Cooperative Engagement Process for Independent Review.[82] 80 http://www.icann.org/en/about/governance/bylaws/proposed-bylaw-revision-reco... 26oct12-en.pdf 81 Ibid. 82 http://www.icann.org/en/news/irp/proposed-cep-26oct12-en.pdf ---- The Special Community Group will use the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions. All recommendations of this Special Community Group would be subject to full community participation, consultation and review, and must take into account any limitations that may be imposed by ICANN’s structure, including the degree to which the ICANN Board cannot legally cede its decision-making to, or otherwise be bound by, a third party. /(As Bruce and Alan have indicated we are that Special community Group/) avri
noticed cut and paste error Hi, Several people have mentioned the ASEP recommendations A list of these can be found on page 10 of the enclosed report. Specifically: RECONSIDERATION * Improve access - add claims for consideration of inaccurate material information///(bylaws were changed to include this, don't know whether practice has caught up yet)/ * Define key terms, such as “material information”, “materially harmed” * Modify time limits for submissions * Include terms and conditions in request form * Allow for urgent review in place of stay * Allow for summary dismissal when warranted * Allow “class” filings/consolidation * Require allegations of standing Independent Review * Create omnibus standing panel/(As people have said the bylaws were changed for this.)/ * Define key terms * Introduce optional cooperative engagement and conciliation phases to narrow issues and improve efficiency * Require submission form with terms and conditions * Introduce: (i) time limits for filing and decision; (ii) and page limitations for argument * Eliminate in-person proceedings absent real need * Allow “class” filings/consolidation * Require allegations of standing ATRT2
From the report:
With regard to restructuring review mechanisms, an Accountability Structures Expert Panel (ASEP) was commissioned in September 2012. It included three international experts on issues of corporate governance, accountability and international dispute resolution. The ASEP reported on October 2012 and the Board acted upon its recommendations on 20 December 2012, approving amendments to bylaws Article IV, Section 2[80] (Reconsideration), Section 3[81] (Independent Review), and the corresponding Cooperative Engagement Process for Independent Review.[82] 80 http://www.icann.org/en/about/governance/bylaws/proposed-bylaw-revision-reco... 26oct12-en.pdf 81 Ibid. 82 http://www.icann.org/en/news/irp/proposed-cep-26oct12-en.pdf ---- The Special Community Group will use the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions. All recommendations of this Special Community Group would be subject to full community participation, consultation and review, and must take into account any limitations that may be imposed by ICANN’s structure, including the degree to which the ICANN Board cannot legally cede its decision-making to, or otherwise be bound by, a third party. /(As Bruce and Alan have indicated we are that Special community Group/) avri
I think we'd need more than a bylaw amendment because the problem is at the level of the enforcement of the bylaws. For example Annex A in ICANN's bylaws describes the way GNSO policy must be made in a bottom-up fashion. The existence of the bylaws has not stopped the staff from changing GNSO policy and the bylaws have not stopped the board from looking the other way when staff does. We need those bylaws enforced and it is the board's job to do that. So I do not believe a bylaw amendment on its own is sufficient to provide the assurance that the bylaws will be enforced. Robin On Jan 30, 2015, at 7:37 PM, Paul Rosenzweig wrote:
I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of “implemented or committed to” is too loose and ought not to be changed to “implemented” ….
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key
From: Robin Gross [mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely.
Robin
On Jan 30, 2015, at 12:39 PM, David W. Maher wrote:
+1 David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849
From: Jonathan Zuck <JZuck@actonline.org> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, "'McAuley, David'" <dmcauley@verisign.com>, 'Accountability Cross Community' <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability
Indeed
Sent from my Windows Phone From: Paul Rosenzweig Sent: 1/30/2015 3:29 PM To: 'McAuley, David'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability
Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs.
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key
From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
That is how the DCA Trust IRP panel seemed to see it, Paul.
Bylaw Art. IV, Section 3.6 says this:
There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.
It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …”
Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August:
114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...)
To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision.
To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far.
David
From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
David
Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented.
Or am I misreading what you are saying? Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key
From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases.
The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...):
“The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.”
David
From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Hi,
And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us.
The fact that those recommendations lingered is indeed why we need the binding bits.
So often we come close, yet at the last minute we let something go undone and the work gets lost.
Stuff like this needs fixing.
avri
On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris.
ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time.
This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed.
There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded.
If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee".
Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented).
Kieren
On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work.
Cheers,
Chris
On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri
On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a singleaccountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ
From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote: Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.”
It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. .
David McAuley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck
Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it.
All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. Whether that means we can overturn a Board action or force an action (in the case of inaction), remove part or all of the Board, have clear standing to take them to court, or some other remedy or combination of remedies is what we are here for. Alan At 31/01/2015 01:05 PM, Robin Gross wrote:
I think we'd need more than a bylaw amendment because the problem is at the level of the enforcement of the bylaws. For example Annex A in ICANN's bylaws describes the way GNSO policy must be made in a bottom-up fashion. The existence of the bylaws has not stopped the staff from changing GNSO policy and the bylaws have not stopped the board from looking the other way when staff does. We need those bylaws enforced and it is the board's job to do that.
So I do not believe a bylaw amendment on its own is sufficient to provide the assurance that the bylaws will be enforced.
Robin
On Jan 30, 2015, at 7:37 PM, Paul Rosenzweig wrote:
I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of implemented or committed to is too loose and ought not to be changed to implemented .
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>Link to my PGP Key
From: Robin Gross [mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely.
Robin
On Jan 30, 2015, at 12:39 PM, David W. Maher wrote:
+1 David W. Maher Senior Vice President Law & Policy Public Interest Registry 312 375 4849
From: Jonathan Zuck <<mailto:JZuck@actonline.org>JZuck@actonline.org> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig <<mailto:paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com>, "'McAuley, David'" <<mailto:dmcauley@verisign.com>dmcauley@verisign.com>, 'Accountability Cross Community' <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability
Indeed
Sent from my Windows Phone
From: <mailto:paul.rosenzweig@redbranchconsulting.com>Paul Rosenzweig Sent: 1/30/2015 3:29 PM To: <mailto:dmcauley@verisign.com>'McAuley, David'; <mailto:accountability-cross-community@icann.org>'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs.
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>Link to my PGP Key
From: McAuley, David [<mailto:dmcauley@verisign.com>mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
That is how the DCA Trust IRP panel seemed to see it, Paul.
Bylaw Art. IV, Section 3.6 says this:
There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.
It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: There shall be
Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August:
114) The need for a compulsory remedy is concretely shown by ICANNs longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trusts claim, and also prejudicing the interest of a competing .AFRICA applicant. (<https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf>https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf)
To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision.
To your question, regarding failed to implement, I would say failed so far. I think Avris term lingering is a good one this is lingering so far.
David
From: Paul Rosenzweig [<mailto:paul.rosenzweig@redbranchconsulting.com>mailto:paul.rosenzweig@redbranchconsulting.com]
Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability
David
Can you elaborate on this please? This is the first instance Ive read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented.
Or am I misreading what you are saying? Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>Link to my PGP Key
From: McAuley, David [<mailto:dmcauley@verisign.com>mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work to populate panels on individual IRP cases.
The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (<https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf>https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf):
The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trusts claim, and also prejudicing the interest of a competing .AFRICA applicant.
David
From:<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [<mailto:accountability-cross-community-bounces@icann.org>mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Hi,
And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us.
The fact that those recommendations lingered is indeed why we need the binding bits.
So often we come close, yet at the last minute we let something go undone and the work gets lost.
Stuff like this needs fixing.
avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris.
ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time.
This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed.
There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded.
If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee".
Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented).
Kieren
On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work.
Cheers,
Chris
On 30 Jan 2015, at 08:34 , Avri Doria <<mailto:avri@acm.org>avri@acm.org> wrote:
Hi,
I think Zero is a wee bit hyperbolic.
I believe that the AOC does provide for accountability in the ATRT reviews.
We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty.
Nomcom also does not always renew terms, even if the people want them too. That is also accountability.
The IRT can also provide accountability. and does.
It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability.
Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree.
avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing accountability mechanisms, there are, in fact, none. Its a complete red herring to explore them as part of this process. There are plenty of opportunities to vent but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous elect a different board. No one wants to hear that but its the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a singleaccountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ
From: Kieren McCarthy [<mailto:kierenmccarthy@gmail.com>mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
One more thing from me and then I'll shut up.
I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience.
For example:
* Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process?
This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk.
Kieren
On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <<mailto:dmcauley@verisign.com>dmcauley@verisign.com> wrote: Hi Kieran,
Thank you for this human-element discussion, most interesting and helpful for me.
I differ with one remark you made in the last post: yes, the Board can be overruled but only on issues of process.
Its actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here).
At present the board can be overruled in reconsideration requests but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard.
In IRP before independent panels, the board can take the panels decision or leave it it is nothing more than a recommendation, again on process-based issues.
The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANNs subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCAs favor. .
David McAuley From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [mailto:<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck
Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Quick thoughts on this:
Yes, what the staff and Board end up doing is partly the community's fault.
Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust.
The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument.
I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making.
Just one example: yes, the Board can be overruled but only on issues of process.
This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with.
ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community.
And this is the big change we introduce this time around.
My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025.
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <<mailto:JZuck@actonline.org>JZuck@actonline.org> wrote: Im somewhat hesitant to speak up given Malcolms excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isnt a way to trigger the group rethinking an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat legal accountability that exists today so my first inclination is to table this discussion and get back to work.
My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the community is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves.
If the result of a policy development process is a failure to find consensus, to compromise, to be human as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether weve followed it. Instead, we present the board with unfinished work, expect them to rule on it and threaten to sue if we dont get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think theres a lot to Kierens concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and Im ready for us to tackle it.
All that said, its not really relevant to the task at hand. Obviously this whole situation has us <http://en.wikipedia.org/wiki/Omphaloskepsis>navel gazing, and thats not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being.
My two cents
Jonathan
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [<mailto:accountability-cross-community-bounces@icann.org>mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability
Like this. Excellent food for thought.
Will dig out Steve's mission email - had completely missed it. You have the email header handy?
Kieren
- [sent through phone]
On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <<mailto:malcolm@linx.net>malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
I compare this to a jury process in the legal system. I dont 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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: <x-msg://520/tel:%2B44%2020%207645%203523>+44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | <http://publicaffairs.linx.net/>http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________
Accountability-Cross-Community mailing list
<mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
No, what we need is a way to ensure the Boatd follows its Vylaws. el -- Sent from Dr Lisse's iPhone 5c
On Jan 31, 2015, at 20:34, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. [...]
s/Boatd/Board/ s/Vylaws/Bylaws/ el -- Sent from Dr Lisse's iPhone 5c
On Feb 1, 2015, at 00:09, Dr Eberhard W Lisse <el@lisse.na> wrote:
No,
what we need is a way to ensure the Boatd follows its Vylaws.
el
-- Sent from Dr Lisse's iPhone 5c
On Jan 31, 2015, at 20:34, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. [...]
We are probably not allowed to install cyborg components to be able to control their behaviour. The threat of using the suggested processes may suffice. And actually using them would go further. If you know of a way to ensure behaviour through other means, please provide details. It might save us a lot of time and effort. Alan At 31/01/2015 05:09 PM, Dr Eberhard W Lisse wrote:
No,
what we need is a way to ensure the Boatd follows its Vylaws.
el
-- Sent from Dr Lisse's iPhone 5c
On Jan 31, 2015, at 20:34, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. [...]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Completely agree with Alan and Robin. Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Saturday, January 31, 2015 1:35 PM To: Robin Gross; Paul Rosenzweig Cc: 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. Whether that means we can overturn a Board action or force an action (in the case of inaction), remove part or all of the Board, have clear standing to take them to court, or some other remedy or combination of remedies is what we are here for. Alan At 31/01/2015 01:05 PM, Robin Gross wrote: I think we'd need more than a bylaw amendment because the problem is at the level of the enforcement of the bylaws. For example Annex A in ICANN's bylaws describes the way GNSO policy must be made in a bottom-up fashion. The existence of the bylaws has not stopped the staff from changing GNSO policy and the bylaws have not stopped the board from looking the other way when staff does. We need those bylaws enforced and it is the board's job to do that. So I do not believe a bylaw amendment on its own is sufficient to provide the assurance that the bylaws will be enforced. Robin On Jan 30, 2015, at 7:37 PM, Paul Rosenzweig wrote: I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of "implemented or committed to" is too loose and ought not to be changed to "implemented" .... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Robin Gross [ mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely. Robin On Jan 30, 2015, at 12:39 PM, David W. Maher wrote: +1 David W. Maher Senior Vice President - Law & Policy Public Interest Registry 312 375 4849 From: Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "'McAuley, David'" <dmcauley@verisign.com<mailto:dmcauley@verisign.com>>, 'Accountability Cross Community' < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability Indeed Sent from my Windows Phone From: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com> Sent: 1/30/2015 3:29 PM To: 'McAuley, David'<mailto:dmcauley@verisign.com>; 'Accountability Cross Community'<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: "There shall be ..." Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN's longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant. ( https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1... ) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding "failed to implement," I would say failed so far. I think Avri's term "lingering" is a good one - this is lingering so far. David From: Paul Rosenzweig [ mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I've read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have "a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work" to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact ( https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1... ): "The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant." David From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing "accountability" mechanisms, there are, in fact, none. It's a complete red herring to explore them as part of this process. There are plenty of opportunities to "vent" but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous "elect a different board." No one wants to hear that but it's the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a singleaccountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [ mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: "yes, the Board can be overruled but only on issues of process." It's actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests - but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel's decision or leave it - it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN's subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA's favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I'm somewhat hesitant to speak up given Malcolm's excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn't a way to trigger the group "rethinking" an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat "legal" accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the "community" is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be "human" as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we've followed it. Instead, we present the board with unfinished work, expect them to "rule" on it and threaten to sue if we don't get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there's a lot to Kieren's concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I'm ready for us to tackle it. All that said, it's not really relevant to the task at hand. Obviously this whole situation has us "navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>," and that's not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively. 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. [...] 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. There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<x-msg://520/tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree with Keith, Alan and Robin: what is important is not the facade of accountability, we already have that, but true transparency and accountability that ensures ICANN is truly responsive to the desires of the community and of the larger world. That's one of the reasons I'm supportive, in a general sense, of proposals to transform ICANN into a membership structure under California law. Members of a California public benefits corporation are entitled to file derivative actions against the Board and Board members thereof for fraud and other egregious actions contrary to the best interests of the corporation. It's not a cure all, being limited to those instances where the corporation has failed to enforce it's rights against third parties, broadly construed, but it is a powerful weapon that vests in the membership the ultimate conduct and direction of the corporation in some very important operational areas. One negative aspect of the California Corporations Code in this regard is the possibility of a bond of up to $50,000 being required by the court to pursue a derivative action (California Corporations Code §5710 ). This highlights an issue we are going to have to face in constructing an effective accountability scheme: affordability. Our current accountability structure falls flat in this area, with access to an IRP being effectively denied to those without extensive resources. This limits the ability of small businesses, nonprofits and many individual registrants to hold ICANN accountable for it's actions. We need to do better in this area as we transform ICANN into a true model of accountable corporate governance and, working together, I'm sure we will. -----Original Message----- From: "Drazek, Keith" <kdrazek@verisign.com> To: "'Accountability Cross Community'" <accountability-cross-community@icann.org> Date: Mon, 2 Feb 2015 15:05:59 +0000 Subject: Re: [CCWG-ACCT] The big test of effective accountability Completely agree with Alan and Robin. Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Saturday, January 31, 2015 1:35 PM To: Robin Gross; Paul Rosenzweig Cc: 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure that if the Board does not follow its Bylaws, the community can take action. Whether that means we can overturn a Board action or force an action (in the case of inaction), remove part or all of the Board, have clear standing to take them to court, or some other remedy or combination of remedies is what we are here for. Alan At 31/01/2015 01:05 PM, Robin Gross wrote: I think we'd need more than a bylaw amendment because the problem is at the level of the enforcement of the bylaws. For example Annex A in ICANN's bylaws describes the way GNSO policy must be made in a bottom-up fashion. The existence of the bylaws has not stopped the staff from changing GNSO policy and the bylaws have not stopped the board from looking the other way when staff does. We need those bylaws enforced and it is the board's job to do that. So I do not believe a bylaw amendment on its own is sufficient to provide the assurance that the bylaws will be enforced. Robin On Jan 30, 2015, at 7:37 PM, Paul Rosenzweig wrote: I agree Robin. So then what is your view on a Bylaw amendment as a commitment with teeth/inevitability? Prior to this discussion, I was of the view that changing the Bylaws was both a necessary and sufficient condition to satisfy a WS1 requirement. Now I see that we have at least one case scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. the failure being called out in ATRT1 and ATRT2. This makes me concerned that one could, hypothetically, change the Bylaws to require our new membership organization, or the redress mechanism that is my own focus, have the Bylaw passed and written in stone and still not see the actual membership or redress change take effect because ICANN as an institution slow-walks the change. This makes me want to consider strongly whether our phrasing in WS1 of “implemented or committed to” is too loose and ought not to be changed to “implemented” …. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key From: Robin Gross [ mailto:robin@ipjustice.org] Sent: Friday, January 30, 2015 4:19 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability I interpret WS1 as those items for which more than mere promises have been made to implement, but rather items where commitments that have some teeth (or inevitability) are in place, such that they couldn't be left lingering indefinitely. Robin On Jan 30, 2015, at 12:39 PM, David W. Maher wrote: +1 David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: Jonathan Zuck <JZuck@actonline.org> Date: Friday, January 30, 2015 2:30 PM To: Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>, "'McAuley, David'" <dmcauley@verisign.com>, 'Accountability Cross Community' < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The big test of effective accountability Indeed Sent from my Windows Phone From: Paul Rosenzweig Sent: 1/30/2015 3:29 PM To: 'McAuley, David'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. ( https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1... ) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [ mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact ( https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1... ): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a singleaccountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [ mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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.
[...]
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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Jan 30, 2015, at 3:29 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Thank you David for that explanation. To be candid it only heightens my view that the accountability measures the community wants need to be both committed to and actually implemented in place before the IANA transition occurs. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 1:42 PM To: Paul Rosenzweig; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
At an ICANN meeting (I believe in London) ICANN legal staff took the position that ICANN need not implement the requirement of a standing panel " because of the pending NTIA transition". David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: <McAuley>, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> Date: Friday, January 30, 2015 12:42 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't understand the logic of that. Did they say anything more? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: David W. Maher [mailto:dmaher@pir.org] Sent: Friday, January 30, 2015 2:35 PM To: McAuley, David; Paul Rosenzweig; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability At an ICANN meeting (I believe in London) ICANN legal staff took the position that ICANN need not implement the requirement of a standing panel " because of the pending NTIA transition". David David W. Maher Senior Vice President - Law & Policy Public Interest Registry 312 375 4849 From: <McAuley>, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>
Date: Friday, January 30, 2015 12:42 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >, 'Accountability Cross Community' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: "There shall be ." Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN's longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug 14-en.pdf) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding "failed to implement," I would say failed so far. I think Avri's term "lingering" is a good one - this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I've read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have "a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work" to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug 14-en.pdf): "The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust's claim, and also prejudicing the interest of a competing .AFRICA applicant." David From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing "accountability" mechanisms, there are, in fact, none. It's a complete red herring to explore them as part of this process. There are plenty of opportunities to "vent" but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous "elect a different board." No one wants to hear that but it's the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> > wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: "yes, the Board can be overruled but only on issues of process." It's actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests - but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel's decision or leave it - it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN's subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA's favor. . David McAuley From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > wrote: I'm somewhat hesitant to speak up given Malcolm's excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn't a way to trigger the group "rethinking" an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat "legal" accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the "community" is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be "human" as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we've followed it. Instead, we present the board with unfinished work, expect them to "rule" on it and threaten to sue if we don't get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there's a lot to Kieren's concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I'm ready for us to tackle it. All that said, it's not really relevant to the task at hand. Obviously this whole situation has us "navel gazing <http://en.wikipedia.org/wiki/Omphaloskepsis> ," and that's not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't think there was any logic to it. At an open meeting I pointed out that ATRT1 recommended the implementation of the standing panel, and ATRT2 referred to the failure to implement the recommendation. A member of ICANN's legal staff then said that nothing had been done because of the pending transition. David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Friday, January 30, 2015 2:00 PM To: David Maher <dmaher@pir.org<mailto:dmaher@pir.org>>, "'McAuley, David'" <dmcauley@verisign.com<mailto:dmcauley@verisign.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] The big test of effective accountability I don’t understand the logic of that. Did they say anything more? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: David W. Maher [mailto:dmaher@pir.org] Sent: Friday, January 30, 2015 2:35 PM To: McAuley, David; Paul Rosenzweig; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] The big test of effective accountability At an ICANN meeting (I believe in London) ICANN legal staff took the position that ICANN need not implement the requirement of a standing panel " because of the pending NTIA transition". David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: <McAuley>, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> Date: Friday, January 30, 2015 12:42 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
The transition may be pending for a long time. Why should their obligations be suspended during it? Makes no sense. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Jan 30, 2015, at 2:37 PM, David W. Maher <dmaher@pir.org<mailto:dmaher@pir.org>> wrote: At an ICANN meeting (I believe in London) ICANN legal staff took the position that ICANN need not implement the requirement of a standing panel " because of the pending NTIA transition". David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: <McAuley>, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> Date: Friday, January 30, 2015 12:42 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The big test of effective accountability That is how the DCA Trust IRP panel seemed to see it, Paul. Bylaw Art. IV, Section 3.6 says this: There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. It is open to some interpretation because it instructs how to choose a panel if a standing panel is not in place. A reasonable (to me) interpretation of the provision is that the alternative way of selecting a panel is for those cases prior to a standing panel being stood up. But it has been years and the introductory language to the bylaw is: “There shall be …” Here is the full paragraph of what the DCA Trust IRP panel said in the procedural ruling in August: 114) The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant. (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...) To be fair, this was an interim ruling by a single panel and ICANN would most assuredly not agree with this decision. To your question, regarding “failed to implement,” I would say failed so far. I think Avri’s term “lingering” is a good one – this is lingering so far. David From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Friday, January 30, 2015 11:45 AM To: McAuley, David; 'Accountability Cross Community' Subject: RE: [CCWG-ACCT] The big test of effective accountability David Can you elaborate on this please? This is the first instance I’ve read of in which it is said that ICANN failed to implement a Bylaw mandate. Is that a fair description? Because if it is, that suggests to me the possibility that even a Bylaw change might not be adequate to satisfy accountability requirements until the bylaw as actually implemented. Or am I misreading what you are saying? Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Friday, January 30, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Another thing that ICANN has let linger (and which is not a recommendation but a bylaw) is the creation of a standing IRP panel that would have “a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work” to populate panels on individual IRP cases. The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) Trust over the handling of the new .africa TLD recognized that the lack of a standing panel had an impact (https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug1...): “The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.” David From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Thursday, January 29, 2015 6:27 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Hi, And unfortunately they ignored the ASEP recommendations. The ASEP was recommended by ATRT1, and its recommendations have been recommend by ATRT2 for the committee working on Accountability it recommended - ie. us. The fact that those recommendations lingered is indeed why we need the binding bits. So often we come close, yet at the last minute we let something go undone and the work gets lost. Stuff like this needs fixing. avri On 29-Jan-15 17:37, Kieren McCarthy wrote: I don't like this line about the Reconsideration Committee not being "understood", Chris. ICANN's staff and Board have developed the rules by which the committee acts and the way in which it decides to apply those rules. Those rules have also changed over time. This is part of the problem - ICANN corporate lives within its own world half the time. I can recall several conversations I had with ICANN's general counsel when on staff where he presented me with an entirely different perspective on critical matters to the one that I and much of the community felt existed. There is an internal body of belief that stands in stark contrast to the outside view. And that body of belief is consciously shielded. If ICANN wants the Reconsideration Committee to stop being misunderstood, it should rename it the "Policy Process Double-checking Committee". Or, alternatively, and preferably, changing the functioning of the committee to actually "reconsider" decisions. And include people other than Board members (one of the accountability recommendations made many years ago but never implemented). Kieren On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Agree Avri. And whilst the reconsideration request process is widely pilloried it does, in fact, provide a level of accountability. It may not be understood, it may not provide the sort of or level of accountability that is desirable but, I for one, would want it to be improved/expanded rather than see it disappear as in a [very] narrow band of cases it does work. Cheers, Chris On 30 Jan 2015, at 08:34 , Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I think Zero is a wee bit hyperbolic. I believe that the AOC does provide for accountability in the ATRT reviews. We also vote on some Board seats and people have lost their seats. Too slow and not as good as a recall procedure, but accountabilty. Nomcom also does not always renew terms, even if the people want them too. That is also accountability. The IRT can also provide accountability. and does. It is true none of these bind the board, and that needs fixing, but I strongly disagree with the statement that there is no accountability. Sure, none are as stringent as taking out and executing at dawn (I've been catching up on Marco Polo on Netflix) but they are accountability, though of a lesser degree. avri On 29-Jan-15 14:14, Jonathan Zuck wrote: Kieren, That hard truth here is that while we endeavor to list existing “accountability” mechanisms, there are, in fact, none. It’s a complete red herring to explore them as part of this process. There are plenty of opportunities to “vent” but there are, in fact, ZERO accountability mechanisms in place, with the exception often cited but ridiculous “elect a different board.” No one wants to hear that but it’s the truth. Our goal here, in the near term is essentially to create ONE mechanism of accountability in place, perhaps two. It is my sincere belief that the presence of even a single accountability mechanism will go a long way to change the culture inside ICANN because the net result will be to turn the light back on the community to reach consensus. This is a GROSS oversimplification, not meant to inspire nit picking but a return to the task at hand which is to create a framework for reform which, if the community remains motivated, will allow major cultural changes to take place. JZ From: Kieren McCarthy [mailto:kierenmccarthy@gmail.com] Sent: Thursday, January 29, 2015 1:57 PM To: McAuley, David Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability One more thing from me and then I'll shut up. I'd be interested to hear from people that have actually gone through the various accountability mechanisms what they thought of the experience. For example: * Were you happy with the process? * Were you happy with the outcome? * Did you feel your points were understand and considered? * What would have improved the process for you? * If you lost, why did you not progress further in the appeal process? This kind of feedback should be being done by ICANN itself but I'm willing to bet it hasn't been. It's also not that hard to do: their names are publicly available. ICANN has all their contact details. I bet many of them would be happy to talk. Kieren On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: Hi Kieran, Thank you for this human-element discussion, most interesting and helpful for me. I differ with one remark you made in the last post: “yes, the Board can be overruled but only on issues of process.” It’s actually not all that positive, if I have things correctly concerning accountability measures within the ICANN environment (not addressing courts here). At present the board can be overruled in reconsideration requests – but only by the board itself on, as you say, process issues. This probably does not meet any realistic, objective accountability standard. In IRP before independent panels, the board can take the panel’s decision or leave it – it is nothing more than a recommendation, again on process-based issues. The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could bind ICANN in a procedural ruling this past year, but ICANN’s subsequent arguments before the same panel as well as other IRP panels indicate that it does not accept that decision. It could be interesting to see what ICANN does with the eventual final ruling in the case, depending on whether the panel rules in DCA’s favor. . David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 11:17 AM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Quick thoughts on this: Yes, what the staff and Board end up doing is partly the community's fault. Where I do place fault is in both continuing to do so, and failing to make changes despite clear signs that it is not working effectively and is even damaging trust. The Board seem confused and frustrated that they continue to be yelled at. The community can't believe that the Board still hasn't heard them. I think the gap is the lack of human judgement and the priority of process and legal argument. I am a big fan of solid changes over long discourse. But what I started to see on this group was a tendency toward process solutions and legal-style decision making. Just one example: yes, the Board can be overruled but only on issues of process. This just creates one more layer and process that ICANN will hold up as accountability and the community will be completely dissatisfied with. ICANN's staff will defend to the hilt the Board's initial decision, creating a fight and tension, limiting discussion and sharing of information, increasing distrust, reinforcing the barrier between Corporate and community. And this is the big change we introduce this time around. My fear is that unless we break that habit, there will be another 10 years of dissatisfaction and another group like this one trying again to bring 'accountability' in 2025. Kieren - [sent through phone] On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but a few things spring to mind. The first and simplest is that process still provides a structure the re-humanization you seek. In a large organization if there isn’t a way to trigger the group “rethinking” an issue, it will never happen. I believe that while this conversation is emotionally rewarding, we need to be very careful to stay inside our remit to come up with some very specific recommendations for increasing accountability (in a legal sense) to replace the somewhat “legal” accountability that exists today so my first inclination is to table this discussion and get back to work. My second inclination is to dive in <g> and to come to the defense of the board and ICANN staff a little bit. The buzzing in the back of my head for the past year or so is that the “community” is partially to blame for the environment in which we find ourselves. ICANN is afraid of litigation because we are litigious. The board does our job for us often because we have failed to do it ourselves. If the result of a policy development process is a failure to find consensus, to compromise, to be “human” as you suggest Kieren, the board is faced with the unenviable task of playing Solomon because the community have essentially abdicated our responsibility. The boards entire job is supposed to ONLY be about process and whether we’ve followed it. Instead, we present the board with unfinished work, expect them to “rule” on it and threaten to sue if we don’t get our way. If the board is guilty of anything in this context, it is their willingness to accept this challenge, which I suggest is dehumanizing because, like Solomon, they are not in the best position to find a solution and often create arbitrary compromise which is the number one characteristic of an arbitration environment. More often than not, the board should simply reject the unfinished work and send it back to the community to get it done right. So I think there’s a lot to Kieren’s concern but I think the community plays a significant role in the problem and must therefore play a significant role in the solution and I’m ready for us to tackle it. All that said, it’s not really relevant to the task at hand. Obviously this whole situation has us “navel gazing<http://en.wikipedia.org/wiki/Omphaloskepsis>,” and that’s not all bad but we do have a very specific task to accomplish in the here and now and we would do well to focus on that alone, at least for the time being. My two cents Jonathan From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Thursday, January 29, 2015 9:39 AM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] The big test of effective accountability Like this. Excellent food for thought. Will dig out Steve's mission email - had completely missed it. You have the email header handy? Kieren - [sent through phone] On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter. Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off. Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here. WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question). WHY do we have that problem? WHO caused it and who can address that? HOW should it be addressed? (OK, I'm leaving out "when". Cut me some slack.) WHY do we have the excessive legalistic formalism Kieren complains about? To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position. But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this: Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone. Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again. Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS. So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance. And we end up with the legalistic formalism of which Kieren speaks. Why? I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process. And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance. Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges". I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse. Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance. Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem. Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote). The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance. And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide. This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others. Is this not the same culture we want to inculcate in ICANN? I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too. And it is very far from the ICANN Kieren describes. WHO can bring this change about? Only us. When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself. What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?" Consider how this might work in practice. For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed. But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability. I promised a HOW. Here is HOW I think we should proceed. In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice. I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions. Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Very useful writeup, the first thing I picked from this exposition is that it tries to indicate instances where one would conclude that it all boil down on the community. I am sure the community referred to in RIPE is not just the proper "paid members" but rather every individual on the list wanting to participate. I would note that such instance of finally speaking with one voice (or at least roughly one voice) within a relatively short period of time is typically common within the RIR communities and this is not because of it's membership structure but because of it's manner of operation which is mostly community driven. There is need to bridge the gap between ICANN board and it's community and that can only happen if both sides of the communities(i.e ICANN staff/board vis ICANN community) exhibit dependencies in it's processes. I particularly appreciate the direction that this WG is going as it looks to bridge such gap; a lot have been achieved so far which I will say could be credited to the open mindedness that has been exhibited by the co-chairs without loosing focus on it's goal. It is my hope that the ICANN board would approach the outcome of this WG in a manner that would already indicate implementation of this WG outcome. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 29 Jan 2015 15:16, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 29/01/2015 11:45, Bruce Tonkin wrote:
In terms of reviewing the new gTLD program
Kieren may correct me, but I read his essay as being about more than just the gTLD program alone, albeit that that was the example given. I read it as a general complaint that ICANN tends to be to formalistic, and loses sight of the substance of the issue, not only in gTLD applications, but often. And I think that he's far from alone in that view, especially amongst those who engage with ICANN peripherally rather than intensively.
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. [...] 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.
There I think you get to the heart of the matter.
Kieren's complaint about formalism is interesting insofar as it goes, and I think it is a very useful contribution, but it is only identifies a problem, it doesn't analyse it or propose a solution. I would like to try to work from where Kieren left off.
Kieren, you're a journalist. You live and breathe five-Ws and an H. Let's apply that here.
WHAT's the problem? (Excessive legal formalism, resulting in loss of sight of the substance of the question).
WHY do we have that problem?
WHO caused it and who can address that?
HOW should it be addressed?
(OK, I'm leaving out "when". Cut me some slack.)
WHY do we have the excessive legalistic formalism Kieren complains about?
To some extent, this is characteristic of all large bureaucracies. They are instinctively defensive, and any individual within them wants to show that they discharged their own responsibilities properly even - perhaps especially - when they don't, as an individual, necessarily agree personally with the organisation position.
But Kieren suggests that ICANN is particularly susceptible to this tendency, and I think I agree. An organisation with a highly empowered single leader (think Apple under Steve Jobs) can cut through process easily. I imagine an early conversation at Apple going like this:
Product Manager: We assembled focus groups in all our major target markets to identify the key characteristics of a revolutionary, magical new phone. We planted the best UI theorists in those groups, to guide them towards characteristics and away from mere features. We then tested the output with surveys from the best polling companies, scientifically designed to ensure all user groups had balanced representation. Using their answers we ranked and prioritised development goals. We hired the best and brightest designers to deliver against that design brief, and I proudly present, the You-Phone.
Steve Jobs: The user experience sucks and it feels like it was designed by a committee. Go back and start again.
Would we want ICANN to work like this? No! We'd be rightly terrified of leaving that much power in one person's hands. We want ICANN to be run by the community, with the Board acting as an arm of the community conducting executive oversight, not ruled by any single Global King of DNS.
So we create structures designed to ensure that everybody's voice is heard and that everybody's interests are taken into account, that competing positions are balanced as fairly as it is possible to be, and that decisions are demonstrably rationally arrived at on the basis of previously agreed consensus policy. And we create more structures to appeal cases to on the basis that any of those things failed in this instance.
And we end up with the legalistic formalism of which Kieren speaks.
Why?
I suggest that it is because we have such a diverse community, and so the only thing we agree on is the process criteria. We agree that everybody should be heard. We agree that there should be periods of public comment, and then further periods of reply comment. We agree that policy should require consensus support. But we're so anxious that that might be the only thing we agree on that we stop there. And so when a decision looks bad, the only thing we have to fall back on is an appeal to process.
And mostly the process was followed (at least in a narrow sense) so it's very hard to reverse the decision, even if you might like to (as Bruce has described). And the dissatisfied party becomes embroiled in an increasingly embittered proxy fight with an increasingly defensive bureaucracy, when everybody knows that the gravamen of the complaint isn't really about process at all, it is, as Kieren says, about the substance.
Some would say this means we need to "unshackle" the Board, to give them a wide-ranging and broad discretion to "do the right thing", or sometimes "to take decision based in the public interest". Removing or reducing external constraints would enable "effective leadership" and give the Board "flexibility to respond to a changing world" without being "buried in legal challenges".
I consider such an approach to be a trap. Those arguments are the same arguments one would make if an avowed enemy of community accountability. Following such recommendations will lead inevitably to a Board with a top-down, paternalistic view of governing the community at best, if not something even worse.
Instead, let us look to other I* communities, which do not seem to have the same problem, to see how the IETF and the RIRs maintain genuine bottom-up community governance, and at the same time remain focused on the substance.
Let me tell a story about how one of the RIRs recently dealt with a potentially difficult problem.
Towards the end of last year, on the mailing list for the RIPE NCC, a Ukrainian who seemed to be a partisan of the government in Kiev, and an opponent of the regime in Crimea and Donetsk, raised a point about the rules. RIPE NCC rules say that organisations applying from IP addresses must supply government issued ID, he said. Why does the RIPE NCC continue to serve users in Crimea? Does the RIPE NCC accept the validity of the Donetsk regime? On what basis and with what justification? Surely the only proper course is for the RIPE NCC to cease to support organisations in Crimea until the legitimately recognised government of Ukraine is restored in the region (I am using his voice, you understand, not my own, but this is a paraphrase, not a direct quote).
The RIPE community immediately saw this intervention for what it was in substance: an attempt to embroil the RIPE NCC in the ongoing regional conflict, on the side to which he was partisan. It was not really a genuine enquiry about the rules, it was an attempt to force a legalistic interpretation that would subvert their intended substance.
And the RIPE community responded swiftly, vocally, and overwhelmingly of one view. The mission of RIPE NCC is to support users by helping to coordinate the distribution of IP addresses to those that need them. Networks in Crimea need IP addresses. This does not change because the legitimacy of the claimed government with effective control of the region is disputed. Many members of the RIPE Community had considerable sympathy with the Ukrainian partisan, and deep personal opposition to Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one thing: the geopolitics of the Ukraine is not the responsibility of the RIPE NCC. The rule requiring government issued ID is there to support RIPE NCC's mission to coordination IP address distribution so that networks are allocated the address space they require (so that RIPE NCC can identify the entities to which it has made allocations); to apply the same rule to prevent IP address block allocation would be to subvert the mission. While there is no universally recognised government in Eastern Ukraine, the RIPE NCC should accept such ID from entities in that area as they are reasonably able to provide.
This story, I think, exemplifies the ability to cut to the substance of the issue that Kieren seeks. How is it arrived at? Not by the introduction of any strong central leader: the NCC staff and Board was almost silent while this discussion played out amongst the community. It was arrived at because the community had a strongly unified sense of its own limited mission (to support the distribution of IP addresses to those that need them, through coordinated allocation policies) and the members of that community were overwhelmingly willing to set aside their own views on a matter outside the scope of that mission when it was suggested that some other reasoning requires an effect fundamentally contrary to the mission. We will not have an argument about whether RIPE NCC should act to /limit/ the allocation of IP addresses to entities in Crimea, not even dressed in the coat of a rules interpretation. Maybe action should be taken against the regime in Crimea - but not by RIPE NCC. RIPE NCC will discharge its own mission, and leave the geopolitics to others.
Is this not the same culture we want to inculcate in ICANN?
I believe that story exemplifies the strength of the RIRs, and describes exactly what we want from ICANN too.
And it is very far from the ICANN Kieren describes.
WHO can bring this change about?
Only us.
When we look to Kieren's complaint, and see how far short ICANN falls of the strong culture shows by the RIRs and the IETF, the "fault" lies with us, the community. We don't *want* the Board, or the CEO, or the staff to come up with a dramatically developed version of the ICANN Mission that will then overrule existing processes and policies. The Mission must be developed by, and founded in, the community itself.
What we need is for the community to develop a much clearer idea of the Mission, and an exposition of what that means and how it is to be applied. Then all the accountability structures we create, the Review Boards and Reconsideration Panels and Ombudsmen and the rest, they will have a proper standard for review. Not a sterile standard that looks only to bare process, but one that asks "Is this consistent with the fundamental mission?"
Consider how this might work in practice.
For .gay, there are many objections one might make. One might say the proposed registrar was not suitable - but that should only lead to the selection of an alternative, or the imposition of tighter control, not to refusal to delegate. If you're not confident in the registrar you might impose behavioural controls (e.g. to prevent limitation of supply) or structural controls (e.g. a shorter contract, to require renunciation of any presumption of renewal of the registry contract etc) or some combination of the two. There will be plenty of room for arguments about the best way to proceed.
But arguments that resolve to (or are recognisable as a mere pretext for) the claim that .gay ought not to exist can be dismissed: ICANN's mission is to make domains available, not to prevent their availability.
I promised a HOW.
Here is HOW I think we should proceed.
In our Frankfurt face-to-face we constructed, yet again, a map of possible new structures, and most of the focus went on that. But there was also a slot on it for the question of clarifying the mission, as the basis for review. A few weeks ago, on this list, Steve DelBianco made a very valuable start, suggesting a new codification of the mission. That contribution has passed almost without notice.
I don't necessarily think Steve's formulation is perfect, but it's a lot better than anything else I've yet seen, and it has the virtue of being a contribution on this critical subject, almost alone. Let us work together on that, to build that common shared sense of Mission. Not an infinitely broad Mission, intended to allow any possible action in an unknowable future, but a narrow mission, intended to guide, to help make decisions which are choices, that can, as Bruce says, act as a meaningful criterion for review of decisions.
Let us have the courage to believe we can build a strong consensus on a meaningfully limited mission, not merely on narrow questions of process. If we can succeed in that, we can succeed in creating an ICANN that is meaningfully accountable to the community on matters of essential substance, not merely failures of process.
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> Date: woensdag 28 januari 2015 23:47 To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@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
participants (27)
-
Alan Greenberg -
Avri Doria -
Barrack Otieno -
Bruce Tonkin -
Chris Disspain -
David W. Maher -
Dr Eberhard Lisse -
Dr Eberhard W Lisse
-
Drazek, Keith -
Edward Morris -
Eric Brunner-Williams -
Evan Leibovitch -
James M. Bladel -
Jonathan Zuck -
Jordan Carter -
Kavouss Arasteh -
Kieren McCarthy -
Kieren McCarthy -
Malcolm Hutty -
Mathieu Weill -
McAuley, David -
Paul Rosenzweig -
Phil Corwin -
Robin Gross -
Roelof Meijer -
Seun Ojedeji -
Steve DelBianco