[CCWG-ACCT] The GAC made me do it

Seun Ojedeji seun.ojedeji at gmail.com
Sat Feb 20 15:49:44 UTC 2016

Reading this on a day like this just made my day.

Thanks Steve

On 20 Feb 2016 4:23 p.m., "Steve Crocker" <steve.crocker at icann.org> wrote:

> 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.
> Steve
> 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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> > icann-board at icann.org
> > https://mm.icann.org/mailman/listinfo/icann-board
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