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

Jordan Carter jordan at internetnz.net.nz
Thu Jan 28 22:51:40 UTC 2016

I got Points 5 and 6 wrong in my bullet points - oops. Point 5 was 2/3,
Point 6 was majority. I was referring to the right one at the end of the
email. Sorry!


On 29 January 2016 at 11:44, Jordan Carter <jordan at internetnz.net.nz> wrote:

> 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
>> _______________________________________________
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>> Accountability-Cross-Community at icann.org
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> --
> 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 *

Jordan Carter

Chief Executive

+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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