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

Thu Jan 28 22:44:13 UTC 2016

Dear Andrew, all:

I see the situation a little bit differently.

It seems to me there is fairly broad agreement about these points:

- the GAC's advice is advice, and does not bind the ICANN Board
- the Bylaws set out how the Board should deal with GAC advice (attempt to
come to an agreement - wrong language but you get the point)
- GAC today generates advice by consensus
- GAC today could change the way it generates advice
- the ICANN Bylaws should clearly state that the way the Board has to
respond to GAC advice should only apply to consensus GAC advice
- the Board has the ability to not accept GAC advice even if it works
through the "attempt to come to an agreement" process.

The critical difference we were discussing with our two options today is
whether, in deciding not to accept GAC advice, the Board can

(point 5) make that decision by majority, or
(point 6) whether it has to achieve 2/3 support to make that decision.

We know that in practice the ICANN Board would generally made a decision
like this *by consensus*, so there is very unlikely to be any practical
difference whichever option we choose.

We also know that when the ICANN community was consulted about the idea of
raising the threshold in the bylaws to 2/3, it was overwhelmingly rejected.

May I add two other points I think that we know, but which are probably
controversial:

- the GNSO is unlikely to be able to approve the proposal with the 2/3 rule
in place
- the GAC is unlikely to be able to come to a consensus to reject the
proposal in the absence of the 2/3 rule.

I've explained why I think there is no practical difference between the two
alternatives. Either way the Board will operate by consensus if at all
possible on such weighty matters.

That said, I do recognise the importance of the symbolism here. So let me
set out my view of this.

I think that governments form an integral part of the ICANN community. In a
context of private sector led multistakeholder governance of the Internet
DNS, they have to be at the table in an appropriate way.

That's why I support GAC as an advisory body only in dealing with ICANN's
main business - its various policy development processes.  It is also why I
support it as a decisional participant in the exercise of the limited and
narrow set of accountability powers our proposals deal with.

There is certainly no disrespect of sovereign states or the role of
governments on my part when I say that the symbolism of 1/2 v 2/3 is simply
not a battle worth fighting, especially when the rest of the ICANN
community has so clearly expressed its view - and when it is so clear that
it will make no practical difference whatsoever.

I'll close by appealing again to what we are trying to do here. We are
trying to close out a proposal, sure - and that should lead to all the
chartering organisations supporting it, or at least not opposing it. I see
that happening most simply through the Point 6 proposal - simple majority
rule for the Board.

But besides closing out this proposal, we are all trying to build a stable
and constructive post-transition ICANN. Acknowledging and respecting our
respective roles and responsibilities in that is important. In my view the
CCWG will likely decide to proceed with Point 6. If that is right, it is a
responsibility of all of us to portray that for what it is: a decision made
on logical grounds, taking the feedback of the ICANN community into
account. It is not an insult, or a symbolic "win" or "loss" for anyone.

I appeal to everyone who's got a deeply entrenched position on this
argument either way to make sure that the discussion and decisions over the
next few days are done with that spirit of coming to a sound conclusion,
and that whichever way it goes, the good faith of all participants isn't in
doubt.  That's the best thing I can think of to help us get this work done
in a durable and successful way.

cheers
Jordan

On 29 January 2016 at 09:57, Andrew Sullivan <ajs at anvilwalrusden.com> wrote:

> 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,
>
> A
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>

-- 
Jordan Carter

Chief Executive
*InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz
Skype: jordancarter
Web: www.internetnz.nz

*A better world through a better Internet *
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