[CCWG-ACCT] Request for Clarification on Threshold Issue
Matthew Shears
mshears at cdt.org
Mon Feb 29 22:58:06 UTC 2016
Likewise.
On 2/29/2016 9:28 PM, Steve DelBianco wrote:
> Agree with Keith’s clarification of intent. That’s what I assumed we
> meant in sending this letter.
>
> From: <accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>> on behalf
> of Becky Burr <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz>>
> Date: Monday, February 29, 2016 at 3:13 PM
> To: Keith Drazek <kdrazek at verisign.com <mailto:kdrazek at verisign.com>>,
> Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>>
> Cc: "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
>
> Agree, in order to respect the non-unanimity principle, the thresholds
> must be revised if and when one of the 5 SO/ACs decides not to
> participate. This is just a common sense reading of the Proposal.
>
> *J. Beckwith Burr****
> **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
> *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367 */**neustar.biz*
> <http://www.neustar.biz>
>
>
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com
> <mailto:kdrazek at verisign.com>>
> Date: Monday, February 29, 2016 at 3:52 PM
> To: Jordan Carter <jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>>
> Cc: Accountability Community <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
> Agreed.
>
> The intent (from my perspective) is to clarify expectations and ensure
> the CCWG and the Board are aligned on what happens to the thresholds
> **if** an SO or AC chooses non-participation and the number drops from
> 5 to 4.
>
> [This issue arose only because of our tangential discussions on the
> GAC carve-out threshold and the ambiguity of the word “may.”]
>
> If the Board can confirm concurrence with our long-standing
> expectation of a non-unanimity principle, then I’ll be comfortable the
> issue is addressed.
>
> I don’t see this requiring a reopening of our report if we can
> otherwise confirm a common understanding and ensure the bylaw drafters
> have instructions consistent with that view.
>
> Separately, the GAC can further clarify its intent during or after
> Marrakech, but at least we’ll have common understanding on the
> structural impact of that decision.
>
> Regards,
>
> Keith
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Jordan Carter
> *Sent:* Monday, February 29, 2016 3:04 PM
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
> Hi all
>
> In three versions of the proposal from this group the GAC has been a
> decisional participant. I firmly agree with what Thomas said, that is
> what our proposal says and that is how it has to remain.
>
> We haven't demanded any SO/AC has to say they are in. We have just
> said that we take them out if they insist.
>
> Anything else would be an utter travesty at this point and undermine
> our process.
>
> On the point raised by the letter that started this thread, I only
> re-state my view that IF the list of decisional participants changed,
> THEN the thresholds would have to change, BECAUSE we cannot have a
> situation where formal total unanimity is required to exercise
> community powers.
>
> cheers
>
> Jordan
>
> On 1 March 2016 at 07:27, Robin Gross <robin at ipjustice.org
> <mailto:robin at ipjustice.org>> wrote:
>
> Unless the GAC can reach a consensus and decide to be “in" the EC, it
> would have to be considered “out” of the EC. If GAC can’t decide to
> accept this new role and its responsibility, we have no place on
> insisting that it does accept this change in its role and
> responsibility. We can’t leave loose ends like this in our report
> without expecting disastrous results - we must have certainty about
> what we are proposing.
>
> Robin
>
> On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc at vlaw-dc.com
> <mailto:psc at vlaw-dc.com>> wrote:
>
> +1. The GAC needs to decide whether they want to be in or out of
> the EC, and the decision time is now.
>
> If the GAC can’t reach a consensus on something that basic then
> trying to use the accountability measures with them in the EC will
> be like trying to drive a car with the parking brake engaged.
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
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> *202-559-8597/Direct*
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>
> *202-255-6172/cell*
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> **
>
> *Twitter: @VlawDC*
>
> */"Luck is the residue of design" -- Branch Rickey/*
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org]
> *On Behalf Of *Mueller, Milton L
> *Sent:* Monday, February 29, 2016 10:12 AM
> *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold
> Issue
>
> This discussion is an example of the absurdity of making
> participation in the empowered community (EC) optional. You were
> all warned about this months ago. The boundaries of the EC need to
> be fixed and completely unambiguous. You must be either in or out.
> There should be no “oh, today I think I am part of it but tomorrow
> I may not be.” It should not be determined on a case-by-case basis.
>
> My understanding is that all 3 SOs are part of the empowered
> community, as is ALAC. My understanding is that GAC has not
> decided whether it is in or out. But once it does decide, it
> should be in or out, full stop, for all cases except the narrow
> carve out related to GAC advice.
>
> If the individual entities who are in the EC (ACs and SOs) do not
> support a vote to spill the board, reject an IANA review decision,
> etc. they are voting against it, full stop. They are not “unable
> to cast a vote.” So a lower threshold never means that there is a
> chance that one SO or AC can make the decision. The threshold only
> changes based on whether GAC is in or out.
>
> --MM
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org]
> *On Behalf Of *Martin Boyle
> *Sent:* Sunday, February 28, 2016 3:09 PM
>
> Kavouss makes a good point: if views are so divided in the SO/ACs
> that many are not able to cast a vote, there is an indication that
> something is wrong.
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org]
> *On Behalf Of *Kavouss Arasteh
> *Sent:* 28 February 2016 17:32
> *To:* Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au>>
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold
> Issue
>
> Bruce
>
> Accruing to some established rule ,out if seven SO/AC, the minimum
> would be simple majority ( 4) bellow that the process does have no
> longer any legal validity
>
> Ksvouss
>
> Sent from my iPhone
>
>
> On 28 Feb 2016, at 00:02, Bruce Tonkin
> <Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
>
> Hello Keith,
>
> I assume there also needs to be some lower limit of
> participants that applies to the concept of “/preventing the
> need for unanimous support”./
>
> Taking an extreme case, what if only one SO or AC “chooses”
> to be part of the decisional process? Every decision taken
> would be unanimous by default.
>
> How many participants of the 7 SOs and ACs makes a viable
> Empowered Community? Should it be 2, 3, or 4. I hope we get
> at least 4 out of 7 for it to genuinely represent a
> significant portion of the community.
>
> So rather than “If fewer than 5”, it could be “If at least 4”
>
> Regards,
>
> Bruce Tonkin
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org]
> *On Behalf Of *Drazek, Keith
> *Sent:* Sunday, 28 February 2016 7:04 AM
> *To:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* [CCWG-ACCT] Request for Clarification on Threshold
> Issue
>
> 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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> --
>
> Jordan Carter
>
> Chief Executive
> *InternetNZ *
>
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--
Matthew Shears | Director, Global Internet Policy & Human Rights Project
Center for Democracy & Technology | cdt.org
E: mshears at cdt.org | T: +44.771.247.2987
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