[CCWG-ACCT] Recommendation 11, 2/3 board threshold, GAC consensus, and finishing

Andrew Sullivan ajs at anvilwalrusden.com
Thu Jan 28 20:57:59 UTC 2016

Dear colleagues,

I was going to make a comment on the call today, but in the interests
of time I took myself out of the queue.  This note replaces what I
wanted to say.

For those chartering organizations and individuals that wish to reject
the compromise, I have a question.  If the proposed compromise
position on recommendation 11 is rejected, there is a good reason to
suppose that at least one important part of the community (the GAC)
will reject the accountability proposal.  That will conceivably
scuttle the transition; and in the absence of a consensus on the
accountability measures, there is no reason to suppose we'll get the
additional powers that are in the current text (incuding the Empowered
Community).  Is it worth it to give up those additional powers to
prevent the 2/3 board threshold, given that the additional powers
provide a way to foil truly bad decisions anyway?

As I understand things, we are in a trap.  On the one hand, the GAC
has produced a consensus position that the board must reject GAC
advice by a supermajority.  And indeed, as things are, the ICANN board
has a difficult time even under the current arrangements when it
decides to reject GAC advice.  Yet the GAC is currently free to
rearrange its own procedures such that it could lower its own
threshold for decisions.  Therefore, the consensus position of the GAC
represents a grave threat to the transition.  The current state of
affairs is in any case not that hot; and the GAC could unilaterally
make that current state of affairs worse.

The compromise proposal does a few things.  It is true that it
increases the threshold for the board to reject GAC advice.  But in
exchange for that, it enshrines the GAC's responsibility to the rest
of the ICANN community as to how the GAC will reach decisions.  This
means that, in exchange for the increased threshold -- a threshold
that I think will be easy to reach regardless of the actual numbers on
the board in any case that counts -- the GAC is giving up independent
control over its decision-making procedures when exercising that
threshold.  In that way, it is actually an improvement of GAC's
covenant with the ICANN community.

Moreover, let us suppose that the GAC produced advice that the board
decided to accept, but the rest of the community found that
objectionable.  In that case, the rest of the community could force
the board not to take the advice _anyway_, because of the additional
accountability measures that this CCWG wants to put in place.

The compromise proposal is not perfect -- I too would prefer not to
have the 2/3 rule -- but one does not expect complete satisfaction
from a compromise.  And it should be surprising to no-one that it came
rather late: each side wants something pretty big, and both appear to
be dug in.  This means that each will need to give something up.
That's what deals look like.  And we need a deal, and soon, because we
need to move ahead with the IANA transition.

Best regards,


Andrew Sullivan
ajs at anvilwalrusden.com

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