From: David Post [mailto:[log in to unmask]]
I agree with much, and maybe all, that you say.  But I am curious as to why you're as concerned as you are about the GACs's 'advisory power' when the Bylaws now state (a) that the Board's powers are limited to implementing consensus policies, and (b) that the Board has no power to act outside of that limitation,

MM: OMG David, those supposed limitations (consensus policies) have been in place since 1998, they mean absolutely nothing. ICANN board just passes whatever policies they want, based on whatever constellation of political pressures they are feeling at the moment (often via GAC), and call it “consensus.” Do you think there was consensus on the new RAA, or do you think USG and law enforcement, via GAC, pressured ICANN staff/board to make those changes and they were then imposed on businesses desperate to start implementing the new TLDs?

and (c) the IRP is empowered to declare Board actions outside of these limits invalid.

MM: you mean it _does now_, or it will in the future after the reforms? If you mean now, you’re wrong because the IRP is too expensive and limited. If you mean future, keep in mind that if GAC is included in the SMCM, any attempt to use the Community Mechanism to overturn GAC advice will automatically have 5 votes against it. ALAC has repeatedly shown that it doesn’t care about mission limitations, so there could go another 5 votes. And if GAC (as often happens) is acting as the agent of some other special interest group (say, Intellectual Property interests just to pick a random example) other votes could easily be picked up.

[I don't mean this as a rhetorical question, btw ]  It does seem to me that if we really believed that the limitations were going to be adhered to, we'd be less concerned about preferential GAC access, insofar as any action the Board took because the GAC asked for it or demanded it could be challenged (and presumably successfully) on the grounds that it was a violation of the consensus requirement.

MM: Two things. First, look at the way GAC succeeded in removing from the commitment regarding advice of “governments and public authorities” any reference to the limitations on the mission. (We make a big deal of this in our draft comments). Second, I’d advise you to review the statements of many governments, Portugal in particular, regarding their claimed right to dictate public policy “without any limits,” their superior status when it comes to public policy, etc.