[CCWG-ACCT] The GAC made me do it

Sat Feb 20 19:07:42 UTC 2016

Andrew:

You raise a very important point with this statement:

" I don't understand why, and you haven't actually made an argument as to why.  If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated.  For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all.  In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met."

My observation of the GAC over the years leads me to believe that there is a high probability that the GAC will be unable to reach a Consensus position, as defined in ST 18 and Recommendation 11, in a timely manner on a wide variety of future matters. Indeed, the fact that the GAC could reach no Consensus position in regard to Recommendation 11 reinforces that view.

Therefore, if and when we finally have a Final Report for review, we should in my view ascertain that the necessary accountability mechanisms will be available to the participating segments of the empowered community, by permitting a lower threshold for action, on those occasions when the GAC is unable to reach any consensus view and therefore abstains from participation.

Best, Philip

Philip S. Corwin, Founding Principal
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Andrew Sullivan
Sent: Saturday, February 20, 2016 11:38 AM
To: Steve Crocker
Cc: Icann-board ICANN; Accountability Community
Subject: Re: [CCWG-ACCT] The GAC made me do it

Hi Steve,

On Sat, Feb 20, 2016 at 10:23:27AM -0500, Steve Crocker wrote:
> 
> With respect, this is not the right way to frame the issue.

I don't understand why, and you haven't actually made an argument as to why.  If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated.  For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all.  In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met.

> 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.

I don't know what the state of mind of others is, but the argument I offered is not based on fear.  It is based on the request of the GAC that their unusual function in ICANN discussions be maintained.  The GAC wants to be able to inject its observations at a point in the process different to any other SO or AC.  If it wants to use that power, it implicitly decides that it isn't like everyone else, and so it doesn't get treated like everyone else.  If the GAC wants to be treated like everyone else, it gets to choose to do that, too.  

> 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.

Of course, but that has nothing to do with how the GAC's participation in the Empowered Community mechanism.  The choice about whether to do that lies entirely with the GAC.

> 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.
> 

Correct; but that's not what's at issue here.  What is at issue is who participates in determining that reason.  The GAC is offered a choice as to whether it wants to participate, or whether it wants its views to be treated in an extraordinary way.

> 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

It is indeed perfectly reasonable, but as you acknowledge it is in fact different than the way the other ACs are treated.  Much of the community is arguing that, if the GAC wants to be treated differently, then its participation needs to change too.

> , 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.

But we're not building a process about how some _other_ arrangement would work.  We're talking about how to handle things given the current roles of SOs and ACs.  If ICANN wants to reorganize itself in the future (there's a whole work stream coming up, I understand) and change the arrangements then, it would then be worth talking about how to adjust these rules too.  For instance, if other ACs get to give special-consideration advice to the Board, I'd expect them also to be excluded from the decision-making process later.

Right now, the goal is to come up with a stable, practical, and legitimate process given the _current_ roles of the SOs and ACs.
That's what the unamended proposal does.

> the ills we deal with is the accumulation of special cases and 
> inconsistencies.  This serves no one and is simply poor governance.

I agree; and yet the current proposal from the Board would create a special case, because it would treat different kinds of actors the same except in some circumstances.  It seems to me that the simplest arrangement is one under which, if an SO or AC wants to participate, it participates on an equal footing as all the others.  That makes it easy to know who might be in and who might be out.  Why isn't that the right way to frame this issue?

Best regards,

A

--
Andrew Sullivan
ajs at anvilwalrusden.com
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