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

Seth Johnson seth.p.johnson at gmail.com
Thu Sep 11 06:15:29 UTC 2014

On Wed, Sep 10, 2014 at 5:13 PM, Alejandro Pisanty <apisanty at gmail.com> wrote:
> 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.)

We refer to them as powers, and the "branches" terminology is mostly a
way of describing them as portions of a constitutional design.  We
have a strong political tendency (a dominant conception at large,
though I think less so "within channels" -- and this is true of both
GWB and Obama) to refer to "the rule of law" as denoting the dominance
of the legislative branch.  Beginning in recent history with Reagan,
who sought a way to establish a way to document "executive intent"
through signing statements that might be cited in court, and in full
flower as the "unitary executive" theory under GWB and in particular
David Addington, who reviewed bills and drafted signing statements for
him (and "complex" under Obama), we have occasionally had the branches
assert coordinate powers to interpret and uphold the Constitution
nearly independently of each other.  Andrew Jackson asserted a similar
power.  Judicial review was established early on with a hook to the
same conception of separation of powers, though the Judicial branch
was much less fully designed in the written Constitution.  But
separation of powers was a fundamental to the basic conception of
popular sovereignty from its origins.

> 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.

Part of why it's a problematic conceptual model.  One still has to
confront the fact that governments have a priority in the
international arena that they don't have the same way within
individual free countries (where governments don't freely meddle in
areas that evince fundamental liberties concerns).

This is entirely without regard to the notion of single, global one (!).

Even numbering easily creates a susceptibility if authorities are
created without care, but this becomes a concern whenever you start
talking about handing functions off to the international arena, and
notably when you move to areas that aren't as "mathematically pure" in
nature.  Few would doubt this once it's stated explicitly, as we are
familiar with many areas in addition to "Internet-related public

And the nature of the international arena in this regard interjects
itself intrinsically regardless of assertions that one is setting up
something that is non-government-led or non-inter-governmental.  One
has to make specific efforts to address the change in the nature of
the context (and in the form of rather distinctive provisions), for
the assertion to actually gain purchase.


> 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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