[CCWG-ACCT] Request for Clarification on Threshold Issue

Sun Feb 28 08:17:30 UTC 2016

If we are going to have a minimum level of participation should it not be fair, then, to weigh SOAC's on the relative weight of their composition? I could, although would prefer not to, argue that the GNSO by shear numbers and diversity should be weighed several, if not hundreds, of multiples more than some of the smaller (although for now nonparticipating) ACs. In fact, that is one of the problems of the entire model. Based upon current published numbers, for example, the NCUC is larger and more diverse, based upon countries members are from, than ALAC. Yet ALAC is weighted as equal on our model  to the entire GNSO of which the NCUC is only a small part of, being itself contained both within the NCSG and the GNSO. 

Unanimity or a high minimum level of participation, provided non participation is voluntary and not forced, in my view establish thresholds so high as to make many of these accountability reforms unusable. Let us not forget when speaking of the "7", the Board actually has a role in determining the composition of some of these smaller groups. Of the remaining five one group, the ASO, has made it clear that our community is not their only or indeed preferred accountability mechanism so may be less interested in participating in individual matters than hoped, another, the GAC, has shown itself as being problematic by its nature in making decisions, while a third, ALAC, in this process in my view has often sided with the Board's positions far more than the other active groups. Unanimity or a high threshold , given these characteristics and our unfortunate reliance on spilling the Board, or members thereof, as our ultimate means of enforcement (a sad side effect of rejection of the superior membership model), would render that ultimate means virtually unusable and should be rejected. We already have accountability mechanisms that look good on paper yet fail in practice. Let's not make that mistake again.

Ed

Sent from my iPhone

> On 28 Feb 2016, at 06:06, <Jorge.Cancio at bakom.admin.ch> <Jorge.Cancio at bakom.admin.ch> wrote:
> 
> Makes sense. Then non-unanimity principle is not an absolute rule, but was thought for the 5 participating SO/AC scenario. Hence, it also must have a minimum level of participation requirement to make sense.
> 
> As to process, I agree with Seun.
> 
> best
> 
> Jorge
> 
> Von meinem iPhone gesendet
> 
> Am 28.02.2016 um 06:35 schrieb Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>:
> 
> 
> Hi James,
> 
> Not that I am opposed to unanimous support requirement, but I am opposed to locking in on such requirement. Especially now that it is clear that minimum of 5 SO/AC may not always be achieved.
> 
> I hope you will agree with me that having 3 SO/AC spill the board is quite low threshold for a community of 7 SO/AC. If for instance ASO decides to pull out of ICANN completely(because they want to run their show themselves), that would make the SO/AC become 6 and it would still make a good balance if 3 spills the board.
> 
> Overall, my point is that the wording should be flexible enough and not restrict the community from making the required decision in future. What we are setting now may not be required in the next 10 to 15 years but it will be good for the community then to agree on what is workable by that time. The main point that needs to be communicated is that the threshold will be reviewed if there is an upward or downward change in the number of EC. That should be sufficient wording with which I also agree to.
> 
> Regards
> Sent from my LG G4
> Kindly excuse brevity and typos
> 
> On 27 Feb 2016 23:28, "James Gannon" <james at cyberinvasion.net<mailto:james at cyberinvasion.net>> wrote:
> Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done…
> 
> Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly?
> 
> -jg
> 
> From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>
> Date: Saturday 27 February 2016 at 10:16 p.m.
> To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
> 
> 
> Dear Co-Chairs,
> 
> Before I make my comment, I like to raise 2 points based on my understanding of current status:
> 
> 1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal.
> 
> 2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO).
> 
> Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting.
> 
> Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity.
> 
> Regards
> Sent from my LG G4
> Kindly excuse brevity and typos
> 
> On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
> Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
> 
> ---------------------------------------------
> Dear CCWG-Accountability Chairs,
> 
> We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
> 
> “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.”
> 
> In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
> 
> 
> ·         Reject a proposed Operating Plan/Strategic Plan/Budget;
> 
> ·         Recall the entire Board of Directors; and
> 
> ·         Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
> 
> These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds.  This potential for renegotiation adds a level of instability and a lack of predictability.”
> 
> Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
> 
> However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
> 
> Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
> 
> “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 shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
> 
> Signed,
> 
> Phil Corwin
> Steve DelBianco
> Keith Drazek
> James Gannon
> Robin Gross
> Ed Morris
> Brett Schaefer
> Greg Shatan
> Matthew Shears
> 
> 
> 
> 
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