Apologies, the position laid out in your e-mail. From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Monday, February 29, 2016 4:38 PM To: Schaefer, Brett Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue hi Brett It's not my position, so please don't characterise it as such. It is the position of the CCWG as expressed in all three versions of our report. The difficulties of decision-making you refer to have been understood and taken into account throughout our work. The thresholds for decisions were established with that reality firmly in mind. best, Jordan On 1 March 2016 at 10:39, Schaefer, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> wrote: 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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@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@ipjustice.org<mailto:robin@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@vlaw-dc.com<mailto:psc@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<http://heritage.org/> ________________________________ 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<http://heritage.org/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@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@icann.org<mailto:accountability-cross-community@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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@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@melbourneit.com.au<mailto:Bruce.Tonkin@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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118<tel:%2B64-4-495-2118> (office) | +64-21-442-649<tel:%2B64-21-442-649> (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://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@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet