[CCWG-ACCT] The GAC made me do it

Steve Crocker steve.crocker at icann.org
Sat Feb 20 15:23:27 UTC 2016

Andrew, et al,

With respect, this is not the right way to frame the issue.  All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board.  While it is true there is a rule in the bylaws compelling the Board to engage in meaningful discussion with the GAC whenever the Board is inclined not to accept GAC advice, at the end of the day the Board makes a decision and is accountable for it.  As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it.  At best, if the Board points to the GAC, it has to cite justification provided by the GAC that stands up to scrutiny irrespective of the fact that it was the GAC who said it.  

To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

But what about the GAC’s special role, you might ask?  Well, to start with there is really less to its special role than it might seem.  As I said, the obligation on the Board is to engage in meaningful discussion.  That’s perfectly reasonable, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference.  I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues.

Please consider the Board’s posture as a friendly amendment, not an adversarial one.  It’s intended to simplify without changing the intent.  Over the nearly twenty years of operation of ICANN, one of the ills we deal with is the accumulation of special cases and inconsistencies.  This serves no one and is simply poor governance.  Let’s move toward simpler and more regular structures and processes.  Among other benefits, it’s an extremely helpful aid to transparency and with greater transparency comes greater accountability.


On Feb 19, 2016, at 9:15 PM, Andrew Sullivan <ajs at anvilwalrusden.com> wrote:

> Dear colleagues,
> I'd like to propose another way of framing this issue.  
> I think people are speaking about this as though the threshold is
> changing.  But it may be that what is changing is the number of
> possible actors.
> The only case we are talking about is the one where the GAC -- not
> the community or anyone else -- has decided in effect to remove itself
> from the Empowered Community.  If the GAC wishes to act in the mode in
> which it gets to give special advice to the Board, and in which the
> Board must then engage with the GAC (and not everyone else) directly,
> then in effect the GAC takes itself out of the Empowered Community and
> acts in its specal GAC-advice role.
> In that case, the number of possible community participants in the
> process is a total of four.  At the moment, there are seven total
> logically-possible participants.  Two of them have already excluded
> themselves.  That leaves a total possible number of five.  But if the
> GAC decides that it wants special access to give advice to the board,
> then the "carve out" says that the GAC doesn't get to participate in
> the Empowered Community on that issue.
> This is a choice entirely within the GAC's power.  It must choose.  If
> it chooses to be board-advisor-GAC, then it is in effect choosing that
> it prefers that mode of operation to being part of the wider Empowered
> Community mechanism.  In effect, a GAC choice can reduce the possible
> actors in the Empowered Community to four.  Otherwise, the GAC is in a
> position to insist on advice it gave being considered first by the
> board, and then that the GAC can also participate in the judgement of
> the Board's actions.  That's the very "two bites" problem that we were
> trying to solve.  I believe that in most organizations (including many
> governments), it would be regarded as surprising that a participant in
> the to-be-judged action also gets to be one of the judges.
> Now, I believe there's been a long-standing principle that unanimity
> of the community not be required to exercise the community powers.
> Therefore, the only possible number of SOs and ACs left as the number
> for action is three.
> Viewed this way, it makes no difference at all whether there is an
> IRP, whether one is possible, whether anyone claims there is a
> violation of the mission, or anything else, because there are only
> four possible actors.  One fewer than four is three, and that's how we
> get to a threshold of three.  
> I understand why people are uncomfortable with such a small number of
> participating SOs and ACs making such a serious decision -- I am too
> -- but it is a consequence of the way this community has decided to
> organize itself, and the decisions of some ACs as to whether they
> participate in the Empowered Community.  Once we accept that model of
> organization, it's very hard for me to see how the threshold we're
> talking about is not a logical consequence.  And after all, the many
> practical barriers to action and rather long process for removing the
> board are there precisely to allow rational discussion and negotiation
> of settlements to happen.
> Those who complain that the GAC is somehow being singled out are, in
> my opinion, making an argument that does not stand up even to casual
> scrutiny.  If the GAC wants to participate in the same way as every
> other SO and AC, then there is no difference whatever in how it will
> be treated.  The GAC has instead asked that its historic ability to
> give certain kinds of priority advice to the board be maintained.  And
> so it is, but with the rule that if the GAC wants to be special then
> it has to be special in other ways too.  The "unfair treatment"
> argument is basically one that the GAC ought to be special all the
> time.  I'm sorry, but that's not how community-driven organizations
> work.
> Moreover, if the situation is really the corner-case of a corner-case
> that many seem to be arguing, then the practical consequences are not
> significant anyway; and we are having an argument that might upend
> everything we have worked so hard to achieve even though there is no
> real problem to solve.  I don't really care how this is resolved, to
> be honest, because I'm way more interested in getting _something_
> everyone can live with.  Still, I'm having a hard time constructing a
> reasonable argument for the board's position.  I think it is time to
> end this seeming-unending discussion, and move ahead with the
> admittedly imperfect compromises that have been hammered out over many
> months.
> Finally, I must note that the IANA transition is waiting on us, and we
> are way past the time when we can be debating these substantive
> issues.  If we blow the transition because some people want special
> treatment all the time, I fear very much for the legitimacy of ICANN's
> claims (as a community) to be a responsible steward of IANA functions.
> For me, it is very hard to predict what might happen if the transition
> fails.  But I hope it is crystal clear that the _status quo ante_ may
> not be what comes of such a failure.
> Best regards,
> A
> PS: As usual, I'm speaking in my individual capacity; but I think it
> important to emphasise it in this case.
> -- 
> Andrew Sullivan
> ajs at anvilwalrusden.com
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