[At-Large] On a "consumer" agenda for ICANN

Evan Leibovitch evan at telly.org
Mon Sep 5 09:27:03 UTC 2016

I think the main issue of accountability stems from a fundamental lack of
public understanding on "accountable to whom? and how to assert this?"

At a macro level, The inability of ICANN to simply explain to whom it is
accountable who is a major problem that feeds the conspiracy theories of
Senator Cruz and others. As it has been until now, the US government
exercised stunningly little oversight until now, amounting to Strickling
writing a (sometimes mildly scolding) letter in advance of ICANN meetings
but otherwise not getting in the way no matter what shenanigans the org
would do (such as engage in this predictably massive failure of a gTLD
expansion and contemplating another).

So now, even the scolding letter is going away, replaced by .... what? An
oversight group, populated mostly by the industry ICANN should be
overseeing, with the power to remove rogue Board members (perhaps Directors
who might assert the public interest even if doing so diminishes ICANN).
Maybe this is wildly inaccurate conclusion, but it's what I -- a not
totally unsophisticated observer viewing from a distance -- can glean in
simplest terms. There is very much of an "inmates are running the asylum"
feel to it all.

At a micro level, the ability for non-registrant end-users to complain
successfully to ICANN (on wholly in-scope issues such as bad WHOIS) appears
laughable. ICANN, by corporate culture, sides with those who contribute to
its revenue over those who threaten it. As Derek has documented, "the
registrant/registrar has responded to your complaint" appears sufficient
reason for ICANN to force a complaint closed, even if the remedial action
is totally unacceptable to the complainant. Even the Ombudsman can be
unsympathetic, impotent and/or overwhelmed. Here too, ICANN appears only
accountable to itself.

As for its communications -- one of the best ways ICANN can serve the
public, as mentioned in my original email -- the information ICANN produces
is written to pander to the audience that already knows it. There is no
effort made to explain ICANN, its processes, or consumer help in ways the
otherwise-disinterested billions of Internet users need to understand. This
is partially due to the real challenge of simple explanation, but also IMO
the fear that -- stripped of jargon and self-interested language -- the
explanation of how and why ICANN does what it does would be a public

On 5 September 2016 at 07:13, Dr. Alejandro Pisanty Baruch <apisan at unam.mx>

> Garth,
> you say: "I feel the degree to which ICANN communities have focussed on
> punishment in analyzing the accountability parts of the transition to be a
> misdirection in addressing answering processes and kind of pathologically
> weird." - truly refreshing to read.
> That approach certainly contributes very little to even being able to
> define a "consumer" agenda for ICANN. It focusses on what consumers -
> however defined - least care about.
> The unfeasibility of ICANN becoming the consumer rights agency for the
> Internet, or even for the full set of operations in the domain-name market,
> was tested and proven at least around 1999 (when ICANN was founded), around
> 2003 (when the present At Large scheme was devised and put into place) and
> later when ICANN found a way to enforce contractual compliance without
> going way out into extragalactic-space-scale mission creep. The new round
> of discussion is arriving very much at the same conclusion; where it is
> not, it is mostly going into that misssion-creep terrain.
> Yours,
> Alejandro Pisanty
> - - - - - - - - - - - - - - - - - - - - - - - - - - -
>      Dr. Alejandro Pisanty
> Facultad de Química UNAM
> Av. Universidad 3000, 04510 Mexico DF Mexico
> +52-1-5541444475 FROM ABROAD
> +525541444475 DESDE MÉXICO SMS +525541444475
> Blog: http://pisanty.blogspot.com
> LinkedIn: http://www.linkedin.com/in/pisanty
> Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/
> 22285/4A106C0C8614
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> ---->> Unete a ISOC Mexico, http://www.isoc.org
> .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
> ________________________________________
> Desde: at-large-bounces at atlarge-lists.icann.org [at-large-bounces at atlarge-
> lists.icann.org] en nombre de Garth Graham [garth.graham at telus.net]
> Enviado el: domingo, 04 de septiembre de 2016 10:14
> Hasta: karl at cavebear.com
> CC: ICANN At-Large list
> Asunto: Re: [At-Large] On a "consumer" agenda for ICANN
> > On Sep 2, 2016, at 5:05 PM, Karl Auerbach <karl at cavebear.com> wrote:
> >
> >> On 09/02/2016 11:12 AM, Garth Graham wrote:
> >>
> >> "Accountability is the responsibility to answer for how you got done
> what you committed to do."
> >
> > I sense you mean something a bit stronger than your words suggest.
> >
> > For instance, I read your formulation as allowing a decision maker to
> simply say "Yes, I did it".
> Yes, I slighted the description of the mechanisms for producing an impact
> or equity statement in the interests of not running on too long.  The more
> open and reciprocal the process of analysis the better.  But, in situations
> where the governing mind of the organization is revealed to be disguising
> its intentions, there is nothing stopping those most strongly impacted by
> the intended action from proposing their own.  The answering, of course, is
> about measuring who actually benefitted and who actually paid against the
> scale of what was intended as the outcome, not merely that action
> occurred.  It's a different lens for seeing the play of the political
> process of deciding.  Often, decision makers actually do not want to be
> fully informed of the consequences of their actions in advance.
> In ICANN's case, the stand in for representing the benefits and/or costs
> to the individual Internet user of a decision would usually but not always
> be ALAC.
> > In other words I think something more than being required to give an
> "answer" is sufficient for true accountability.
> >
> > At a minimum "accountability" ought to mean that those to whom the duty
> of accountability is owed have the power and ability to "throw the bums
> out" (i.e. to replace the decision makers who failed to do their duty).
> >
> > It also means the power to force the undertaking of remedial actions
> such as reversing the ill decision and repairing any damage caused.
> I see that action on a failure to answer (to account) for the consequences
> of an action taken, falls outside the scope of accountability.  What the
> equity statement would do is anticipate a bit more deeply the consequences
> of deciding and acting before the fact.  It either modifies the equity of
> an intended action or highlights the fact that the beneficiaries of the
> intended action are quite a bit more narrow than the decision makers had
> revealed. Then when the answering does occur, it allows the statement of
> who would benefit and who would pay to stand as a scale of measurement of
> the truth of the answer.
> I'm nowhere near being a lawyer. I'll leave to those who are the legal
> framework that governs what happens when the governing mind of an
> organization is seen by the answering process to have failed in reaching
> its intentions or in meeting its responsibilities.  But I feel the degree
> to which ICANN communities have focussed on  punishment in analyzing the
> accountability parts of the transition to be a misdirection in addressing
> answering processes and kind of pathologically weird.
> >
> > In normal corporate structures (and ICANN *is* a corporation, or, now,
> two) that is done through periodic elections of the board of directors
> (with those to whom the duty of accountability having the power to vote),
> by derivative actions (of which ICANN's law firm has a terrible fear), and
> by normal actions against the corporation, its directors, and sometimes its
> officers for violations of fiduciary and other duties.
> >
> > There are other forms of accountability.  For example, directors of IRS
> 501(c)(3) corporations (which includes ICANN) are subject to "intermediate
> sanctions" if there is an interaction between the corporation and a closely
> related party in which an undue benefit is conferred.  Yes, those are
> somewhat vague terms, but there is nothing vague in the means in which that
> accountability is imposed: through a 200% excise tax (yes, a tax - which is
> often not covered by corporate insurance) directly imposed on the personal
> assets of the directors as well as on the corporation itself.
> >
> >    --karl--
> >
> >
> >
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Evan Leibovitch
Geneva, CH

Em: evan at telly dot org
Sk: evanleibovitch
Tw: el56
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