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

Wed Sep 10 23:13:12 UTC 2014

Andrew,

all good points.

We should look back at the history of appeal and redress mechanisms of
ICANN over the years in order not to try to create something out of thin
air while ignoring previous experience. Further, the existing mechanisms
for appeal and redress have been used to significant effect. Milton knows
this well as he was an active participant in at least one of them.

The "independent judiciary" becomes effectively an authority over ICANN
and, as you say, over the communties that directly use IANA services, so at
least it has to have a standing equal to ICANN's and that lower bound is
also its lower bound - much like in the separation of powers that feeds the
institutional design of many democracies that recognize independent powers
for the legislative, executive and legislative (these are indeed called
Powers in many languages; AFAIK the US is distinctive in calling them
"branches", a much lower status in my reading.)

It must be noted that the quest for an "independent judiciary" aligns well
with the delusion of a single, global higher authority, i.e. the delusion
of a world government.

Let's keep in mind those constraints in the institutional design that is
taking place.

Alejandro Pisanty

On Wed, Sep 10, 2014 at 3:27 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> On Wed, Sep 10, 2014 at 07:53:14PM +0000, Milton L Mueller wrote:
> >
> > A good way to reconcile those two requirements is to have an
> "independent judiciary" with the authority to enforce binding,
> constitutional limitations on what the policy process can do. This appeals
> process could be used to challenge ultra vires policies, to challenge major
> process failures, or to challenge implementations that do not reflect
> agreed policies. All of these challenges should take place BEFORE anything
> hits the IANA, of course. If policy (ICANN) and IANA are integrated in the
> same organization, it becomes harder to enforce that kind of
> accountability, imho.
> >
>
> Given the "BEFORE" in that, am I to understand that you intend this
> "independent judiciary" to be inside each community function, or do
> you intend it to be another community/entity/organization outside all
> the existing ones?
>
> I think the former might be ok -- indeed, it's really just an
> effective appeal/redress mechanism, and is consistent with the idea of
> minimal change to the systems.
>
> The latter interpretation is rather more problematic to me.  To begin
> with, I don't really see how we're going to get such an organization
> spun up in anything like reasonable time.  There's also the issue of
> how to balance _its_ power: the ability of various countries' supreme
> courts have made them ideal targets for politicised appointments, with
> the very goal of imposing over the long term policies which cannot be
> sustained by the ballot box.  (If you can water down election spending
> limits in the legislature, you can win a victory for a while; if you
> can get them ruled unconsistitutional, you've _really_ won.)  The
> obvious answer, of course, is an appeal mechanism which then itself
> needs the same appeal mechanism, and so on.
>
> Moreover, I'm reasonably confident that at least one community thinks
> that its existing accountability mechanisms are an internal matter,
> and that it would be at least uncomfortable with the idea of an
> external party imposing oversight.
>
> Best regards,
>
> A
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
>
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>

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