[CCWG-ACCT] Request for Clarification on Threshold Issue

Jorge.Cancio at bakom.admin.ch Jorge.Cancio at bakom.admin.ch
Mon Feb 29 18:56:25 UTC 2016


Thanks Thomas. This is indeed the last substantive consensus position we agreed in the GAC. Starting next Saturday we will hopefully further develop it.

best

Jorge

Von meinem iPhone gesendet

Am 29.02.2016 um 19:53 schrieb Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>:

Hi Greg, all,
first of all - sorry for mistyping RSSAC!!!! in my previous e-mail.

Also, I would like to clarify that - to me - the difference between abstaining and „doing nothing“ is that the former includes statement (I abstain) whereby the latter is just no response at all. The effect is the same. Let’s not further dwell on this. I did not mean to confuse or complicate matters.

You may find this excerpt from the GAC comment on the 3rd draft helpful:

"Establishing an empowered community for enforcing community powers (RECOMMENDATION 1) The GAC anticipates that it intends to participate in the proposed community mechanism with the following qualifications. The GAC would focus on participation in the processes of engagement and escalation detailed in Recommendation 2 with a view to supporting dialogue and mutual understanding that would lead to resolution of disputes rather than escalation. GAC participation would be primarily guided by a careful and prudent analysis of whether the issue under consideration has public policy and/or legal implications. The GAC’s participation at the enforcement stage as appropriate is still under discussion."

Thomas


Am 29.02.2016 um 18:33 schrieb Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>:

In response to Thomas's note:

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