[CCWG-ACCT] poll result and next steps

[Schaefer, Brett]

Thomas,

I understand this decision, though I disagree with it. One clarifying point, the test states:

“Where the power to be exercised is recalling the entire Board for implementing GAC advice, the reduced threshold would apply only either after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws”

I thought the IRP would also encompass situations where the decision would be contrary to the Articles and Mission? For instance, paragraph 1 of Annex 7 states “The purpose of the Independent Review Process (IRP) is to ensure that ICANN does not exceed the scope of its limited technical Mission and complies with its Articles of Incorporation and Bylaws.”

I appreciate the clarification.

On your final point, I know that the proposal includes text on this issue. But it is far from conclusive. The actual text from Annex 2 states:

“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”

Note the use of “may be adjusted” and “may also have to be adjusted”.

I think we need to make this explicit or secure Board confirmation that they would not seek a unanimity threshold for Board recall if there are less or more than 5 decisional participants. Otherwise, we could be fighting this all over again in the medium term.

Thank you,

Brett



________________________________
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
202-608-6097
heritage.org<http://heritage.org/>
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Thomas Rickert
Sent: Tuesday, February 23, 2016 1:14 PM
To: Accountability Cross Community
Subject: [CCWG-ACCT] poll result and next steps

All,
Several of you have raised questions and concerns about the process used for coming to a conclusion on the language in Annex 2. We have explained why we have given the CCWG the opportunity to express views on the various inputs that we received, reflect on the potential consequences and discuss a way forward. For those interested in the details, we would kindly refer you to the recording and transcript<https://community.icann.org/pages/viewpage.action?pageId=58721088>.

The fact is that concerns with the language in Annex 2 have not only been expressed by the Board, so we would urge everyone to consult the publicly archived mailing list as well as the mp3 and transcript of the call earlier today.

We understand and share the view that work in the CCWG has been, and still is, exhausting and not as straightforward or predictable as one would hope. However, work in this CCWG is not like work on projects in a commercial environment – the journey to consensus is painful, lengthy and, yes, it takes detours. Stumbling forward characterizes the multi-stakeholder model and has been part of our work for the past 14 months. I guess we would all have hoped that there are no bumps during the last mile, but that is just how our group functions at times.

We would like to congratulate and thank all of you for expressing your views on this matter. Hearing all views, particularly those that are controversial, adds to the credibility of the product of our work because this allowed all colleagues on the calls to make an informed decision on how to proceed.

On the call, we suggested looking at two alternatives, both of which have been thoroughly discussed. We then proceeded to polling and allowed everyone on the call to chime in.

There has been a debate on the list subsequently about who could participate in the poll and who could not. You will remember that we clarified that, while everyone could join the poll, an analysis of the results would be conducted after the call. Yet, we wanted to collect all "raw data" at the time of the call.

We have now taken a look at the outcome of the poll and confirm that - focusing on members and participants only and focusing on members in particular - we have broad support for removal of the language in (2). A statistical analysis can be found below in this e-mail.

As such, the updated Paragraph 72 language is:

The CCWG-Accountability also recommends that in a situation where the GAC may not participate as a Decisional Participant because the Community Power is proposed to be used to challenge the Board’s implementation of GAC consensus advice and the threshold is set at four in support, the power will still be validly exercised if three are in support and no more than one objects, with the following exception:

Where the power to be exercised is recalling the entire Board for implementing GAC advice, the reduced threshold would apply only either after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or
(1) if the IRP is not available to challenge the Board action in question.

If the Empowered Community has brought such an IRP and does not prevail, the Empowered Community may not exercise its power to recall the entire the Board solely on the basis of the matter decided by the IRP. It may, however, exercise that power based on other grounds.

The discussion has shown that parts of the group have opted for this way forward after thorough discussion of all consequences of what we had in our report.

Some of you might be disappointed with this, but please remember that we always aimed to be as inclusive as possible and to work as consensus-driven as possible while coming to closure as quickly as feasible. That is the co-Chairs' mandate.

Today, the CCWG had the opportunity to choose the option to ship the report in its 19 February draft version. It was in the CCWG's hands to ignore the issue that was raised by the Board and supported by others. The CCWG has chosen to take a different approach and the co-Chairs certainly cannot ignore the CCWG's wishes.

One final point: Some on the email list have asked questions about decision thresholds if the number of decisional participants in the Empowered Community changes from the expected five SOs/ACs. We draw your attention to the text in Paragraphs 73 and 74 of Annex 2 in the 19 February draft. This text explicitly notes that any change in the number of decisional participants would lead to a reconsideration of the thresholds. A simple understanding of this is that if the number of decisional participants falls, so will the required level of support for those powers that today require 4 SOs/ACs to support their use. This is not changed by the decisions made today about para 72.

We will now proceed and send the finalized report, without (2), to the Chartering Organizations for approval.

Thank you,
Thomas for León and Mathieu (who is on leave)


Results of polling from February 23rd 2016 call of the CCWG-Accountability
Analysis on the 4 questions with 56 casting votes from the CCWG call of February 23rd:

•      Members

o   ALAC – all 5 present

o   ASO – 2 of 4 present

o   ccNSO – 3 of 5 present

o   GAC – 4 of 5 present

o   gNSO – 5 OF 5 present

o   SSAC – none of 2 present

o   Total present 19 of 26 or 70%



•      Poll #1 – Who objects to removing the 2nd bullet in Paragraph 72 (in red on the slide), (“If the IRP is not available to challenge the Board action in question”)?

o   11 of 56 = 20% total

o   2 of 19 Members = 11%, 2 of 26 = 8%

•      Poll #2 – Who objects to sending the report forward (to Chartering Organizations) as it is currently, (i.e. the 19 February version with the full text in Paragraph 72)?

o   30 of 56 = 54% total

o   8 of 19 Members = 42%, 8 of 26 = 32%

•      Poll #3 – Who supports removing the language in the 2nd bullet in Paragraph 72 (in red on the slide), (“If the IRP is not available to challenge the Board action in question”)?

o   38 of 56 = 68% total

o   11 of 19 Members = 58%, 11 of 26 = 42%

•      Poll #4 – Who supports sending the report to Chartering Organizations as it is currently, (i.e. the 19 February version with the full text in Paragraph 72)?

o   14 of 56 = 25% total

o   2 of 19 Members = 11%, 2 of 26 = 8%


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