[CCWG-ACCT] The GAC made me do it

Schaefer, Brett Brett.Schaefer at heritage.org
Sat Feb 20 18:09:48 UTC 2016

Well said, Andrew.

Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002


On Feb 20, 2016, at 11:39 AM, Andrew Sullivan <ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>> wrote:

Hi Steve,

On Sat, Feb 20, 2016 at 10:23:27AM -0500, Steve Crocker wrote:
> With respect, this is not the right way to frame the issue.

I don't understand why, and you haven't actually made an argument as
to why. If some potential participant -- GNSO, ccNSO, ALAC, GAC, or
Council of Martians and Other Planet-dwellers -- decides not to be
part of the Empowered Community, that changes the number of
participants and changes the way that majorities need to be
calculated. For instance, suppose that both the GAC and the ALAC
tomorrow announce that they don't want to be part of the Empowered
Community after all. In that case, surely you wouldn't still require
four SOs and ACs for action against the Board, because the threshold
could never be met.

> All of this quite convoluted discussion and negotiation seems to be
>based on a fear of the extraordinary power of the GAC to apply
>pressure on the Board.

I don't know what the state of mind of others is, but the argument I
offered is not based on fear. It is based on the request of the GAC
that their unusual function in ICANN discussions be maintained. The
GAC wants to be able to inject its observations at a point in the
process different to any other SO or AC. If it wants to use that
power, it implicitly decides that it isn't like everyone else, and so
it doesn't get treated like everyone else. If the GAC wants to be
treated like everyone else, it gets to choose to do that, too.

> As the recent IRP ruling made clear, the Board cannot justify an
>action by pointing to the GAC and saying, in effect, the GAC made me
>do it.

Of course, but that has nothing to do with how the GAC's participation
in the Empowered Community mechanism. The choice about whether to do
that lies entirely with the GAC.

> To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

Correct; but that's not what's at issue here. What is at issue is who
participates in determining that reason. The GAC is offered a choice
as to whether it wants to participate, or whether it wants its views
to be treated in an extraordinary way.

> But what about the GAC’s special role, you might ask? Well, to
> start with there is really less to its special role than it might
> seem. As I said, the obligation on the Board is to engage in
> meaningful discussion. That’s perfectly reasonable

It is indeed perfectly reasonable, but as you acknowledge it is in
fact different than the way the other ACs are treated. Much of the
community is arguing that, if the GAC wants to be treated differently,
then its participation needs to change too.

> , and, if we want
> to explore how to level the playing field, perhaps the right thing
> is for the Board to treat the other advisory organizations with the
> same deference. I’m not suggesting we attempt to make that change
> at this particular moment, but I am suggesting we separate the
> issues.

But we're not building a process about how some _other_ arrangement
would work. We're talking about how to handle things given the
current roles of SOs and ACs. If ICANN wants to reorganize itself in
the future (there's a whole work stream coming up, I understand) and
change the arrangements then, it would then be worth talking about how
to adjust these rules too. For instance, if other ACs get to give
special-consideration advice to the Board, I'd expect them also to be
excluded from the decision-making process later.

Right now, the goal is to come up with a stable, practical, and
legitimate process given the _current_ roles of the SOs and ACs.
That's what the unamended proposal does.

> the ills we deal with is the accumulation of special cases and
> inconsistencies. This serves no one and is simply poor governance.

I agree; and yet the current proposal from the Board would create a
special case, because it would treat different kinds of actors the
same except in some circumstances. It seems to me that the simplest
arrangement is one under which, if an SO or AC wants to participate,
it participates on an equal footing as all the others. That makes it
easy to know who might be in and who might be out. Why isn't that the
right way to frame this issue?

Best regards,


Andrew Sullivan
ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>
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