[CCWG-ACCT] The GAC made me do it

Rudolph Daniel rudi.daniel at gmail.com
Sat Feb 20 16:40:05 UTC 2016

Yes, crystal clear. Thank you.
On Feb 20, 2016 11:50 AM, "Seun Ojedeji" <seun.ojedeji at gmail.com> wrote:

> Reading this on a day like this just made my day.
> Thanks Steve
> Regards
> 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
>> > _______________________________________________
>> > icann-board mailing list
>> > icann-board at icann.org
>> > https://mm.icann.org/mailman/listinfo/icann-board
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