[discuss] [IANAxfer] Two accountability questions - help pls- Workshop 23 - ICANN accountability

[Seth Johnson]

On Mon, Sep 1, 2014 at 3:14 AM, Jordan Carter <jordan at internetnz.net.nz> wrote:
> Hi all,
>
>> On 31/08/2014, at 7:09 pm, John Curran <jcurran at istaff.org> wrote:
>>
>>> On Aug 31, 2014, at 6:00 PM, Jordan Carter <jordan at internetnz.net.nz> wrote:
>>>
>>> Dear all
>>>
>>> Apologies for cross-posting...
>>>
>>> I am seeking some community feedback as part of prepping for the
>>> workshop on ICANN accountability scheduled for Wednesday 9am here at
>>> #igf2014.
>>>
>>> The particular questions I have, two, are:
>>>
>>> 1. Is ICANN's accountability a subject for the whole Internet
>>> community to resolve, or (as suggested by ICANN, in distinction from
>>> the iana stewardship transition) an internal ICANN community matter?
>>
>> Jordan -
>>
>> Could you explain a little more about what you mean by "ICANN accountability"?
>> In particularly, for what function or task to be performed by ICANN are you
>> asking about accountability?
>
> I can't, in the sense that the session here at IGF uses that phrase.
> Your teasing out of the below is very useful, so thanks for that.
>
>> If the you mean "ICANN's accountability as a overall coordinator of names
>> and numbers" that may result in different answer than "ICANN's
>> accountability as the DNS registry policy development body"...  (and
>> definitely different answers than "ICANN's accountability in performance of
>> the IANA functions")
>>
>>> 2. Can *internal* accountability arrangements, of whatever sort, ever
>>> be adequate for an entity like ICANN that is intended (at least it
>>> looks like that is ICANN's intention) to be responsible for the
>>> stewardship of the iana functions?
>>
>> By "internal", are you asking wether such could be adequate based on
>> ICANN's current specific governance structures, or asking more generically
>> the question of "can any organization be accountable to an external
>> community for performance of a task", and have the accountability
>> anchored solely via internal mechanisms?"


Yes, an organization can be accountable to an external community for
performance of a task and have have the accountability anchored (nto
solely) via internal mechanisms.


The paradigm case is democracy itself.

While the US has exercised an outsize role from the international
perspective, the stewardship under previous arrangements is
accountable to an external community, in large part because of the
overall governance system of the US and similar democracies.

Consider the constitutional act.  In establishing a government, a
people act independently of the government to set the framework for
the government's regular (internal) conduct, while establishing the
priority of the people, particularly in the form of their fundamental
liberties (external), over the government's regular operation.

Checks and balances that often appear "internal" in this frame
actually are based on the constitutional act -- this is why, for
instance, under predominantly US stewardship you don't have the
government stepping into areas with pervasive free-speech
implications.  The separation of powers is not just
structural/internal, it's also based on the relation of fundamental
rights as prior to/external to the structure.  That is, this is why
even after long periods of governments getting off track and acting in
excess, eventually a judge will simply state that that's not the kind
of government we set up.  (We have had a perfect example of this with
respect to surveillance, wherein we went a long time with people
trying to pursue court cases or simply to expose intriguing evidence
that the surveillance was going on -- but that issue never gained
purchase in the courts until Snowden provided the documentation, and
that was when we could start talking about whether that was the kind
of government we set up).

You have an internal system, which is the business of regular
elections, with representatives and participation, and also an external
system, in a relationship to the people who set up the system.

The biggest problem with the transition is in fact the tendency to
overlook the fact that the moorings of the stewardship we have had are
being removed.  Contracts and internal organizational structures (and
international treaties about rights signed onto and interpreted by
governments) don't really compensate for the loss of a relationship to
the solid basis of a constitutional act.

Just for you to take into account.  There are some ways to establish
something approximating this relationship to what's really the
strongest basis for accountability to a context that holds fundamental
liberties paramount.


Seth




> The more general question, as phrased, is very elegant. Interested in your
> view!
>
> thanks,
> Jordan
>
>> Thanks!
>> /John
>>
>> Disclaimer: my views alone.
>>
>>
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