[CCWG-ACCT] Request for Clarification on Threshold Issue

Mon Feb 29 17:33:30 UTC 2016

In response to Thomas's note:

On Mon, Feb 29, 2016 at 11:48 AM, Thomas Rickert <thomas at rickert.net> wrote:

> Dear Keith, all,
> below you find a quick summary of where we are on this with respect to our
> report:
>
> - GAC is a decisional participant unless we get a clear signal (as from
> RSAC and SSAC) that they don't want to be one.
>

I had thought that GAC had to make a decision about whether or not to be a
decisional participant.  If what you say is true, GAC will be a decisional
participant unless they come to a full consensus decision that are not a
decisional participant.  I hope that GAC will go one better than that, and
affirm that they are a decisional participant and are committed to
meaningful participation in the decisional mechanism of the EC.

>
> - All decisional particants can vote yes, no, abstain or do nothing.
>

I'm unclear whether there is any substantive difference between
"abstaining" and "doing nothing."  It would be unfortunate if we had any
decisional participant that was "in" because it could not decide to get
out, and then "did nothing" because it could not decide to do anything
else.  We would then end up with de facto unanimity required where the
threshold is 4.  There may be no way to prevent that, but the way to reduce
the likelihood of such an outcome would be to require each decisional
participant to opt in.  That is one of the reasons we need a decision from
the GAC.

>
> - If there is a change in structure, i.e. a decisional participants does
> not further want to be one, an SO / AC is closed down or if there is an
> addition, we need a bylaw change. This is what the group responded to the
> Board's wish to include percentages. The CCWG refused percentages as we
> need a bylaw change anyway if a change is taking place.
>

I agree with this entirely -- if one of the 5 presumed participants opts
out or closes down, "we need a bylaw change."  Unfortunately, the Proposal
doesn't say that -- if it did, this request would not have been made.
Instead the report says we "may" need a change (which also leaves open the
possibility we "may not" need a change).  We merely seek to clarify this
understanding by changing "may" to "shall" (or "must" or "will") to
eliminate the unintended "wiggle room" that could result in

>
> - Should the Board refuse to make / support a required bylaw change, we
> have the tools in our report.
>

Again I agree -- but we don't have a "required" bylaw change stemming from
our proposal, because we have the word "may" and not the word
"shall/must/will."

We seek only to clarify that a bylaw change will be "required' under these
circumstances.

>
> - Any clarification needed to that effect can be made during the
> implementation phase.
>

Why wait when we can nip this in the bud? If it's a mere clarification,
then it should be noncontroversial.  I fear that some who oppose this very
much like the wiggle room the word "may" affords them, and will use it to
oppose any such change if and when the time comes.  Furthermore, it's far
from clear how much control we will have during the implementation process
in order to make such change.  I recognize this is a bit messy and thus
undesirable from a process management perspective -- but leaving open an
option (no change) that was clearly unintended by the broad majority of the
group is also undesirable.  I think there's a very real chance we will only
have 4 decisional participants, and we're better off preparing for that now.

Greg

>
> Thanks,
> Thomas
>
>
> Am 27.02.2016 um 21:03 schrieb Drazek, Keith:
>
> 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 *shall* be
> 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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>
>
> --
>
>
>
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