[CCWG-ACCT] Request for Clarification on Threshold Issue

Jordan Carter jordan at internetnz.net.nz
Tue Mar 1 00:23:57 UTC 2016


hi Milton

Sorry, wrong. The assumption has been made and it is the same as the
assumption that was made in the Third, Second and First Draft Reports. GAC
is going to be listed in the fundamental bylaws as a decisional participant
in the Empowered Community.

The only way that could change would be if GAC advised it did not wish to
do so. Same with any other group.

As we have clarified in the thread, if that happens, then we need to reopen
the thresholds.

It should not be necessary to point out that being listed as one of the
five creates no obligation on any of the five decisional participants to
do, or not do, anything. They retain the absolute ability to participate or
not in any decision of the empowered community.

best,
Jordan

On 1 March 2016 at 13:16, Mueller, Milton L <milton at gatech.edu> wrote:

> Whether one agrees with Brett or not, the fact remains that GAC has
> explicitly told us that it is _*undecided*_ on whether to be a decisional
> participant or not. Therefore, until we get a positive decision from them,
> we cannot assume that they will be by default. Greg S. was saying
> essentially the same thing:
>
>
>
> By my reading, the GAC position completely sidesteps the issue of whether
> they will participate as a "decisional participant" (i.e., whether they
> will be counted one way or the other when a decision must be made).  Am I
> misreading this?
>
>
>
> No, he is not misreading it.
>
> We are waiting for the GAC to decide whether they are in or out.
>
> Jordan: no assumptions about GAC’s status can be made.
>
>
>
> --MM
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Schaefer,
> Brett
> *Sent:* Monday, February 29, 2016 4:39 PM
> *To:* Jordan Carter <jordan at internetnz.net.nz>
>
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
>
>
> Jordan,
>
>
>
> It seems to me that your position is forcing the GAC to participate even
> though it has not decided to do so.
>
>
>
> In essence, it creates a default of participation and creates a burden on
> those governments not inclined to get GAC consensus on non-participation.
> Why is this less discriminatory to GAC autonomy than requiring them to
> reach a decision to participate?
>
>
>
> In addition, as a practical matter for EC decision making, considering the
> GAC’s difficulty in reaching decisions,  in many (most?) instances one of
> the 5 participants would be abstaining or not taking a position.
>
>
>
> Best,
>
>
>
> Brett
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Jordan
> Carter
> *Sent:* Monday, February 29, 2016 3:04 PM
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
>
>
> Hi all
>
>
>
> In three versions of the proposal from this group the GAC has been a
> decisional participant. I firmly agree with what Thomas said, that is what
> our proposal says and that is how it has to remain.
>
>
>
> We haven't demanded any SO/AC has to say they are in. We have just said
> that we take them out if they insist.
>
>
>
> Anything else would be an utter travesty at this point and undermine our
> process.
>
>
>
> On the point raised by the letter that started this thread, I only
> re-state my view that IF the list of decisional participants changed, THEN
> the thresholds would have to change, BECAUSE we cannot have a situation
> where formal total unanimity is required to exercise community powers.
>
>
>
>
>
> cheers
>
> Jordan
>
>
>
>
>
> On 1 March 2016 at 07:27, Robin Gross <robin at ipjustice.org> wrote:
>
> Unless the GAC can reach a consensus and decide to be “in" the EC, it
> would have to be considered “out” of the EC.  If GAC can’t decide to accept
> this new role and its responsibility, we have no place on insisting that it
> does accept this change in its role and responsibility.  We can’t leave
> loose ends like this in our report without expecting disastrous results -
> we must have certainty about what we are proposing.
>
>
>
> Robin
>
>
>
>
>
> On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
>
>
> +1. The GAC needs to decide whether they want to be in or out of the EC,
> and the decision time is now.
>
>
>
> If the GAC can’t reach a consensus on something that basic then trying to
> use the accountability measures with them in the EC will be like trying to
> drive a car with the parking brake engaged.
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> ------------------------------
>
> *Brett* *Schaefer*
>
> * Jay Kingham Senior Research Fellow in International Regulatory Affairs
> Margaret Thatcher Center for Freedom Davis Institute for National Security
> and Foreign Policy*
> The Heritage Foundation
> 214 Massachusetts Avenue, NE
> Washington, DC 20002
> 202-608-6097
> heritage.org
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Mueller,
> Milton L
> *Sent:* Monday, February 29, 2016 10:12 AM
> *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
>
>
> This discussion is an example of the absurdity of making participation in
> the empowered community (EC) optional. You were all warned about this
> months ago. The boundaries of the EC need to be fixed and completely
> unambiguous. You must be either in or out. There should be no “oh, today I
> think I am part of it but tomorrow I may not be.” It should not be
> determined on a case-by-case basis.
>
>
>
> My understanding is that all 3 SOs are part of the empowered community, as
> is ALAC. My understanding is that GAC has not decided whether it is in or
> out. But once it does decide, it should be in or out, full stop, for all
> cases except the narrow carve out related to GAC advice.
>
>
>
> If the individual entities who are in the EC (ACs and SOs) do not support
> a vote to spill the board, reject an IANA review decision, etc. they are
> voting against it, full stop. They are not “unable to cast a vote.” So a
> lower threshold never means that there is a chance that one SO or AC can
> make the decision. The threshold only changes based on whether GAC is in or
> out.
>
>
>
> --MM
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Martin
> Boyle
> *Sent:* Sunday, February 28, 2016 3:09 PM
>
> Kavouss makes a good point:  if views are so divided in the SO/ACs that
> many are not able to cast a vote, there is an indication that something is
> wrong.
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Kavouss
> Arasteh
> *Sent:* 28 February 2016 17:32
> *To:* Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au>
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
>
>
>
> Bruce
>
> Accruing to some established rule ,out if seven SO/AC, the minimum would
> be simple majority ( 4) bellow that the process does have no longer any
> legal validity
>
> Ksvouss
>
> Sent from my iPhone
>
>
> On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au>
> wrote:
>
> Hello Keith,
>
>
>
> I assume there also needs to be some lower limit of participants that
> applies to the concept of “*preventing the need for unanimous support”.*
>
>
>
> Taking an extreme case,  what if only one SO or AC “chooses” to be part of
> the decisional process?   Every decision taken would be unanimous by
> default.
>
>
>
> How many participants of the 7 SOs and ACs makes a viable Empowered
> Community?  Should it be 2, 3, or 4.   I hope we get at least 4 out of 7
> for it  to genuinely represent a significant portion of the community.
>
>
>
> So rather than “If fewer than 5”, it could be “If at least 4”
>
>
>
> Regards,
>
> Bruce Tonkin
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Drazek,
> Keith
> *Sent:* Sunday, 28 February 2016 7:04 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
>
>
>
> Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the
> undersigned members/participants from the GNSO:
>
>
>
> ---------------------------------------------
>
> Dear CCWG-Accountability Chairs,
>
>
>
> We are very concerned with the response of the Board to the request for
> clarification regarding the need to adjust the thresholds for the Empowered
> Community to exercise its powers if the number of decisional participants
> is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this
> possibility is ambiguous:
>
>
>
> “The thresholds presented in this document were determined based on this
> assessment. If fewer than five of ICANN’s SOs and ACs agree to be
> decisional Participants, these thresholds for consensus support may be
> adjusted. Thresholds may also have to be adjusted if ICANN changes to have
> more SOs or ACs.”
>
>
>
> In our view, there is no question that the thresholds *must* be adjusted
> if there are fewer than five decisional participants. We have acknowledged
> repeatedly and operated under the assumption that there should not be a
> requirement of unanimous support for the Empowered Community to exercise
> its powers. Yet, if there are less than five decisional participants,
> unless the thresholds are adjusted it would require unanimous support for
> the Empowered Community to:
>
>
>
> ·         Reject a proposed Operating Plan/Strategic Plan/Budget;
>
> ·         Recall the entire Board of Directors; and
>
> ·         Reject an ICANN Board decision relating to reviews of IANA
> functions, including the triggering of any PTI separation process.
>
>
>
> These powers are central to ensuring that ICANN remains accountable to the
> Empowered Community. This matter is too critical to the primary purpose of
> the CCWG-Accountability proposal to remain unclear. As the Board has noted
> in its own formal comments, “Leaving this issue for future consideration
> raises the potential for renegotiation of the community thresholds.  This
> potential for renegotiation adds a level of instability and a lack of
> predictability.”
>
>
>
> Although it has a superficial resemblance to the recent debate over
> thresholds in the GAC carve-out, we believe it is fundamentally different.
> There is a great distinction between an SO or AC *choosing* to not
> participate, and an SO or AC being *blocked* from participation in a
> specific instance, as was the case in the case of the GAC carve-out. We
> were willing to accept a unanimous threshold for Board recall in the unique
> circumstances of the GAC carve-out, where the GAC was blocked from
> participation, but we believe firmly that if any SO or AC *elects*,
> whether through a conscious decision or an inability to decide, to not
> participate, then the non-unanimity principle must be upheld.
>
>
>
> However, as we saw with the debate over the thresholds in the GAC
> carve-out, this could be a contentious issue. It is far better to resolve
> this matter now (and during the drafting of bylaws), prior to the official
> transfer of the proposal to NTIA, than to delay it when it could have
> significant negative ramifications on the transition through a failure to
> resolve it during the implementation phase.
>
>
>
> Therefore, we respectfully request that the current text in Annex 1 and
> Annex 2 be edited to replace “may” with “shall” and add an additional
> explanatory clause:
>
>
>
> “The thresholds presented in this document were determined based on this
> assessment. If fewer than five of ICANN’s SOs and ACs agree to be
> decisional Participants, these thresholds for consensus support *shall* be
> adjusted *to prevent the need for unanimous support among the decisional
> Participants to exercise any of the seven Community powers*. Thresholds
> may also have to be adjusted if ICANN changes to have more SOs or ACs.”
>
>
>
> Signed,
>
>
>
> Phil Corwin
>
> Steve DelBianco
>
> Keith Drazek
>
> James Gannon
>
> Robin Gross
>
> Ed Morris
>
> Brett Schaefer
>
> Greg Shatan
>
> Matthew Shears
>
>
>
>
>
>
>
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> --
>
> Jordan Carter
>
> Chief Executive
> *InternetNZ *
>
>
>
> +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter
> jordan at internetnz.net.nz | www.internetnz.nz
>
>
>
> *A better world through a better Internet*
>
>
>



-- 
Jordan Carter

Chief Executive
*InternetNZ *

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

*A better world through a better Internet*
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