December 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for CCWG ACCT Meeting #73 - 22 December
by Brenda Brewer Dec. 22, 2015

Dec. 22, 2015

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #73 - 22 December will be available here: https://community.icann.org/x/9ItlAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: staff to provide geographic statistics ACTION ITEM: Remind Bruce of this request and provide an assessment of Board comments ACTION ITEM: Co-Chairs/Becky to discuss with external counsel whether there are ways to use competition law in trying to mitigate friction. ACTION ITEM: Becky to send update to group next week ACTION ITEM : Request Advisors' input on GPI ACTION ITEM: Add GPI rationale to report ACTION ITEM: Steve del Bianco to follow up Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Public Comment Period Staff update: 80 replies. 4 of COs sent in comments (GAC, ALAC, ASO, SSAC). Input from a number of constituencies received. Staff uses spreadsheet. Discussion * * Input on geographic regions needed. * ACTION ITEM: staff to provide geographic statistics * On number of comments: less individual responses as requested to channel feedback through SO/ACs Update from Chartering Organizations * * ALAC: ALAC has 5 YES, 4 YES but with restrictions, and 3 NOs. * GNSO :The GNSO aims to have a consolidated position statement by the middle of January. The GNSO Council will have 2 calls in early January and plans to have a motion by January 14. Most GNSO SGs and Cs have submitted direct comments, but these will be consolidated in early January. * ASO: Positive feedback - we support Draft Proposal: model and recommendations. We intend to participate in community structure. Rec. 3: specify that talking about naming function. Rec 5 important to have reference to MoU. Rec 8 excluded Rec 11: support text that clarifies today's practices and can be supported by NTIA. * ccNSO: Call tomorrow. Possible to have input in next few days. * SSAC: SSAC has submitted one-page comment and deliberately not commented on individual recommendations as cannot comment outside limited scope. SSAC anticipates it will be able to support the final proposal on understanding that nothing changes between now and then. * GAC comment - <http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30…> http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30… Work plan for CCWG Review of proposed work plan. Issues will require substance discussions to identify common way forward We will focus on easy-to-fix issues as a priority and then focus on complex issues. Draft analysis will help us structure our work. Per our Charter - we will need to consider whether supplemental draft, public comment needed. We should not wait for January 14 (foreseen GNSO submission) to conduct assessment. We already have received a number of submissions from GNSO constituencies. Irrealistic to expect that potential supplemental report will be published by January 7. We will need to consider whether there is a need to increase frequency of calls or need to set up subgroups to address topics. Discussion: * * Supplemental report should go to public comments. * Flexibility needed to start discussing * In flavor of plenary discussion and more calls. Content for plenary discussions should be concise * Discussion to be continued on list. * Treat Board comment properly and timely. Response on GPI question on Board members' criteria is pending. We are considering asking Advisors for input. Input on how to address Board comments is welcome. Intent in addressing Board comments is to be as constructive as possible. Board has two roles: 1) chiming into consensus discussion; 2) Adopting report. We need support of COs first to evaluate impact on consensus and to assess whether final form of recommendations raise concenrs with Board. It would be premature to edit recommendations now. We need to think how to deal with GPI and understand Board's concerns. We need to offer rationale why we think GPI is not affected. Discussion: * * Agree with comment that we should examine Board comments objectively. Agree with approach to categorize Board comments. There may be varying degrees. Clarify with Board on how strongly they feel with these suggestions * Disagreement with proposed approach. * There is agreed definition of public interest. It will be endless discussion. ACTION ITEM: Remind Bruce of this request and provide an assessment of Board comments CONCLUSION: Plenary of the CCWG-ACCT will need to discuss outstanding items. Mission, Commitments & Core Values - Summary of status quo With respect to Board comments, we have fundamental divide about potential unintended consequences. Bruce requested to see there is language the Board could offer to help us close this. ALAC comments boil down to unintended consequences of what this language will do with respect to renewal of registry agreement, ability to sign those agreements after language is adopted and PICS specifications. GAC has been asking for legal opinion. Two key questions: (1) what does the prohibition on regulation mean; (2) what is the scope of grandfathering Discussion: * * Careful analysis of sensitive PICS was done. * Grandfathering: difference of opinions whether long term/short term. Policy vs implementation come into equation. * Determine whether limited to grandfathering. Different camps: 1) ICANN should not engage in any activity related to content regulation; 2) ICANN must be in a position to do so. How can we reconcile these differences? Suggestion to consider attempt mitigation friction by adding language that limits risk of ICANN exercising monopoly. Where contractory voluntary offers limits. ACTION ITEM: Co-Chairs/Becky to discuss with external counsel whether there are ways to use competition law in trying to mitigate friction. ACTION ITEM: Becky to send update to group next week ACTION ITEM : Request Advisors' input on GPI ACTION ITEM: Add GPI rationale to report Stress Test 18 - Summary of status quo Public comment period: We have softer support. Objections are dissenting. Discussion will be needed Discussion: * * Current Bylaw should remain as it is - sentence should be added: should GAC change consensus to majority then the text by CCWG could apply. * Revise language to clarify that all we are changing is 2/3 * In previous bylaw no mention was made on rejection. The Board may not always have used a formal decision. CONCLUSION: Only way to obligate Board is to have decision locked into consensus. ACTION ITEM: Steve del Bianco to follow up AOB Clarifications on CRISP notification on timeline: Board comments were listed as a specific example. Note intended for CoChairs but shared with full CCWG for full transparency

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Third Draft Proposal
by Gregory, Holly Dec. 22, 2015

Dec. 22, 2015

Dear CCWG, Co-Chairs and ICANN Staff, It has been brought to our attention that our comments on the Third Draft Proposal have been misunderstood by some to indicate that we are critical of the Draft. Our intent was simply to help to assure that the Final Proposal is the highest quality reflection of the solid efforts of the CCWG to date by pointing out where we thought some clarification would be helpful to an unfamiliar reader and to the eventual bylaw drafting effort. We sent the comments to CCWG in the interests of transparency so that the group is aware of our suggestions for the Final Report and/or implementation phase. We do not view our comments as suggesting any changes in policy approach. We are sorry to hear that our comments have been taken by some to criticize the work of the CCWG, Co-Chairs and Staff. That was in no way our intent. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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CCWG Accountability AGENDA - Call #73 | 22 December @ 12:00 UTC
by Brenda Brewer Dec. 22, 2015

Dec. 22, 2015

Dear all, In anticipation of the CCWG Accountability Meeting #73 <https://community.icann.org/x/9ItlAw> on Tuesday, 22 December from 12:00-14:00 UTC (time converter <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&… ah=2> ), please find below the proposed agenda: 1. Welcome, Roll Call, SOI 2. Public comment period on Draft Proposal 3. Update from the Chartering Orgs 4. Work plan for CCWG 5. Mission, Commitments & Core Values - Summary of status quo 6. Stress Test - Summary of status quo 7. A.O.B Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thank you. Kind regards, Brenda

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Fw: [ccwg-internet-governance] ICANN BLOG ON WSIS+10 UNGA MEETING
by Mary Uduma Dec. 21, 2015

Dec. 21, 2015

_______________________________________________ ccwg-internet-governance mailing list ccwg-internet-governance(a)icann.org https://mm.icann.org/mailman/listinfo/ccwg-internet-governance

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Blog: IANA Stewardship Transition & Year End
by Brenda Brewer Dec. 21, 2015

Dec. 21, 2015

* ICANN Blog * Author: Theresa Swinehart * 18 Dec 2015 Original link: https://www.icann.org/news/blog/iana-stewardship-transition-year-end IANA Stewardship Transition & Year End This past year has been busy for the community on all the transition related work. It has been filled with many ups and downs, good moments and challenging ones, and a year of incredible work, compromise, negotiation and collaboration among all stakeholders. With the end of the year only days away, it's a good opportunity to reflect on all that has been accomplished and consider what's in store for the year ahead. In March 2014, we began the work of facilitating the IANA Stewardship transition process, working with the community to ensure it had what it needed to conduct its work. Earlier this year, in May 2015, NTIAreached out to the communities working on the transition proposal to ask how much time they thought they would need to finalize and implement their proposals. Based on the community's feedback, NTIA <https://www.ntia.doc.gov/blog/2015/update-iana-transition> announced the contract extension in August from 30 September 2015 to 30 September 2016, a period of time that includes the NTIA review and approval process and the implementation forecasts submitted by the community. Secretary Strickling <https://www.icann.org/en/system/files/files/transcript-transition-facilitat…> has emphasized [PDF, 183 KB] the timing by which NTIA must receive the final proposals to allow sufficient time on their part. Working backwards from September 2016, and taking into consideration the NTIA review and the implementation time, the community has been working tirelessly to finalize their proposals in January. Also over the past few months, our implementation team, led by Akram Atallah, President, Global Domains Division, began administrative preparation for the necessary implementation actions, including identifying projects based on the current proposals, creating high-level timelines and engaging with the community to better understand their reporting and oversight needs. As communicated to the community, we estimate implementation to take a minimum of four months. In collaboration with the community we hold <https://www.icann.org/resources/pages/transition-facilitation-2015-09-23-en> monthly calls regarding any expected changes to the community timelines. This provides a useful opportunity for the community working together to keep each other appraised of how any of their work may impact the community-established timeline. After all the progress at ICANN54, both the ICG and the CCWG-Accountability have noted their expected time frames. The ICG finalized its work at ICANN54 in Dublin, and provided a status update and proposal document shortly after the meeting concluded. The group awaits confirmation from CWG-Stewardship that its requirements have been met by the CCWG-Accountability, who <https://www.icann.org/news/blog/cross-community-working-group-on-enhancing-… nn54-co-chairs-statement> laid out a rigorous timeline to submit its Work Stream 1 Recommendations at the end of January 2016, which included development of a new Third Draft Proposal, public comment period and Chartering Organization approval. The Board submitted <http://mm.icann.org/pipermail/accountability-cross-community/2015-November/…> initial thinking based on the summary report, and have already submitted their <http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30…> full public comments to help meet the timeline, and the Chartering Organizations and many members of the community have been working diligently to get feedback in as soon as reasonably possible. While keeping the CCWG-Accountability busy through January, the goals set out by the CCWG-Accountability balance the various timeline constraints, both inside and outside of the community. However, while timeline concerns should continue to be addressed within the CCWG-Accountability, we cannot risk the ability of ICANN to effectively do its job on Internet identifiers for the sake of meeting that timeline. Staff will continue to do everything we can to help the CCWG-Accountability complete its work in time for NTIA to make a decision this year. What will the next year bring? The community's work reaching the next stages will be underway, and we look forward to supporting the community and its work. We want to be clear that as the CCWG-Accountability weighs the input from this public comment period, we are supportive of the timeline the community lays out both from a staffing and a resource perspective. As many, including Steve and Fadi have <https://www.icann.org/news/blog/thoughts-heading-into-los-angeles> said before, it is more important to get this done right than to get it done quickly, while considering all the interdependencies including the U.S. and NTIA context. For example, the U.S. Congress just passed a 2,009-page Omnibus spending bill that limits NTIA's ability to use funds to relinquish the IANA functions contract before 30 September 2016 (the final day of the current contract term), and we need to remain aware of this, but not let it derail or drive our process. We thank the CCWG-Accountability for their tremendous effort to meet this conclusion in time for a transition in 2016. I look forward to collaborating constructively with the community in whatever they need, and remain confident we will reach conclusion on the transition and achieve this historical endeavor together.

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Re: [CCWG-ACCT] CCWG ACCT Meeting | 12:00 UTC | 22 December
by Dr Eberhard W Lisse Dec. 20, 2015

Dec. 20, 2015

Brenda, please note that I will be in transit on Tuesday, though I may, perhaps get the Adobe Connect in the iPhone to work so I can at least listen in the car. greetings, el On 2015-11-19 16:59 , Brenda Brewer wrote: > *CCWG-Accountability Meeting *– Tuesday, 22 December 2015 from > 12:00 – 14:00 UTC [...]

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Third Draft Proposal -- substantive Comments/Edits
by Rosemary E. Fei Dec. 20, 2015

Dec. 20, 2015

Dear CCWG: To confirm our comprehension of the CCWG’s decisions on the many changes from the Second to the Third Proposal, we reviewed the Third Proposal as published. In doing so, we noted points where the language in the Third Proposal does not unambiguously reflect our current substantive understanding of the CCWG’s intent. In our comments on the Third Proposal draft, we suggested edits on many of these points which were not accepted, so perhaps we have misunderstood the intent. As to other points, we don’t have a clear understanding of the CCWG’s intent. In either case, we would like clarification. In the attached table you will find our joint substantive comments on the Third Proposal as published. As we approach the implementation stage, we would welcome an opportunity to discuss any of our comments that raise questions or concerns, to ensure we know what we’re asked to implement. We also hope these comments may be useful to clarify the final proposal for the general reader. To make the volume of our comments more manageable, we are sending staff separately our comments on the Third Proposal that raise only non-substantive issues. Holly and Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei(a)adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

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Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Alan Greenberg Dec. 20, 2015

Dec. 20, 2015

Greg, you say that the current Bylaws do not reference voting. The current wording (https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j) is "In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice..." How else is the Board able to formally decide on anything other than by voting? Alan At 16/12/2015 03:09 AM, Greg Shatan wrote: >All, > >In reviewing the Third Draft Proposal, concerns >have been raised within my constituency that the >proposed Bylaw does more than replace an >existing "majority" threshold with a new "2/3" >threshold. The concern is that the proposed >Bylaw introduces a "mandatory vote" by the Board >in order to reject GAC Advice where the Bylaws >do not currently require a Board vote. Further, >there appears to be a concern that, if the Board >does not take a vote and affirmatively reject a >piece of GAC advice, then that GAC advice becomes binding on ICANN. > >These concerns stem from a reading of the draft Bylaw (new language in red): > > >The advice of the Governmental Advisory >Committee on public policy matters shall be duly >taken into account, both in the formulation and >adoption of policies. In the event that the >ICANN Board determines to take an action that is >not consistent with the Governmental Advisory >Committee advice, it shall so inform the >Committee and state the reasons why it decided >not to follow that advice. Any Governmental >Advisory Committee advice approved by a full >Governmental Advisory Committee consensus, >understood to mean the practice of adopting >decisions by general agreement in the absence of >any formal objection, may only be rejected by a >vote of two-thirds of the Board, and tThe >Governmental Advisory Committee and the ICANN >Board will then try, in good faith and in a >timely and efficient manner, to find a mutually acceptable solution. > > >âThe current language of the Bylaw makes no >reference to voting, only to the far more >ambiguous "determines to take an action." As >such, adding a reference to a vote can be seen >to add a new element (aside from the >introduction of a 2/3 threshold): the element of >a bylaws-mandated vote. Similarly, the >statement that GAC Advice can only be rejected >by a vote of the Board can be read to state that >if no such vote is taken (or if such vote is >taken and fails) that the GAC Advice is then >something ICANN is bound to follow. > >I don't think either of these things were >intended by the CCWG. Whether they are >misreadings of our draft language or unintended >consequences of the drafting, this concern is >troubling. If it is the intent of some of those >drafting this language to force a vote where >none is currently required, then that is even more troubling. > >I would appreciate some clarification on these >matters that I can bring back to my group. > >I would also appreciate the CCWG considering a >change in language to remove this ambiguity >which is currently causing great consternation in my group. > >I suggest the language below. This m >ore closely track >âsâ >the language of the existing bylaw and avoid the >use of the term "vote," with its potential unintended consequences: > >The advice of the Governmental Advisory >Committee on public policy matters shall be duly >taken into account, both in the formulation and >adoption of policies. In the event that the >ICANN Board determines to take an action that is >not consistent with the Governmental Advisory >Committee advice, it shall so inform the >Committee and state the reasons why it decided not to follow that advice. >â >If the Board >â >determines to take an action that is not consistent with >Governmental Advisory Committee advice approved >by a full Governmental Advisory Committee >consensus, understood to mean the practice of >adopting decisions by general agreement in the absence of any formal objection, >â >âsuch determination must be supported by >two-thirds of the Board, and the Governmental >Advisory Committee and the ICANN Board will then >try, in good faith and in a timely and efficient >manner, to find a mutually acceptable solution. >â > > >I would appreciate your thoughts on this point >and the revised language. Thank you. > >Greg >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Alan Greenberg Dec. 19, 2015

Dec. 19, 2015

Keith, I wasn't trying to compare the two processes at any level. I was simply pointing out that the concept of board "approval" at a lower threshold than 50% is not a new concept. Whether it is appropriate in the case of GAC advice and whether it should depend on how that advice was determined, was not the focus of my comment. The ALAC has carefully avoided comment on that issue and I am honouring that. Alan At 18/12/2015 01:46 PM, Drazek, Keith wrote: >Alan, if weâre comparing results of GNSO PDP >recommendations with GAC consensus advice, >itâs important to note that a key element of >the GNSOâs threshold is the Board only has to >show deference to the GNSO when that advice is >the result of a formal PDP. This means not all >GNSO resolutions receive the Board deference, >even if the vote of the GNSO Council is >unanimous. The GNSO may only initiate a formal >PDP under certain restrictions in both scope and >jurisdiction and not every topic can be properly >considered in scope for a GNSO PDP. In fact, >as part of every issue report in the GNSO PDP >process, the ICANN General Counsel is asked to >opine as to whether the proposed issue is >properly within the jurisdiction of the >GNSO. If it is not, that does not prevent the >PDP from continuing, but the higher Board >threshold would not be required in such a case. >Will the GAC be similarly and appropriately >restricted in the scope of its advice, for >example, to only issues of public policy or >international law and treaties? This issue is >under active discussion in the RySG and will be >reflected in its public comments. Regards, Keith > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Alan Greenberg >Sent: Friday, December 18, 2015 1:28 PM >To: Robin Gross; Greg Shatan >Cc: accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] Does the proposed >change to the GAC Bylaw create a new "mandatory >voting requirement" for the ICANN Board? > >We have th3e exact same situation with the Board >accepting GNSO PDP recommendations. It takes >supermajority to reject. But we still say that >the GNSO "recommends" policy and it is adopted - >or not - by the Board. Saying that it takes a >supermajority to reject is identical to saying >that acceptance only requires 1/3. There is no >presumption. It is simply a different threshold. > >Alan > >At 18/12/2015 01:11 PM, Robin Gross wrote: > >Greg raises an interesting point about the >status of GAC advice in the absence of a 2/3 >vote to reject it below. I recall our lawyers >telling us early on (and often) that board >members are not allowed to Ã¢¬off-load" key >decisions of the organizationÃ¢¬s management >to others as it would be a breach of theiir >fiduciary duty. But it seems like that is what >we may have done (intentionally or not) by >presumptively accepting GAC advice and putting >the burden on the board to reject and undo the >effect of that decision. This may be an issue >we need to further explore with our lawyers. > >Robin > > > >On Dec 17, 2015, at 9:51 PM, Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com > wrote: > >[] >There is another issue raised by this new >language. With this revision, it is far from >clear what the status of GAC Advice that not >been rejected by a 2/3 vote? If the Board takes >a vote, but the rejection fails to pass, is the >GAC Advice now "accepted" (possibly by a vote of >1/3+1) and binding on ICANN? What about GAC >Advice on which no vote has been taken -- is >that Advice "accepted" and binding on ICANN and, >if so, when? [Compare this to the Community's >right to reject a standard bylaws change -- if >the community does not elect to do so, or >attempts to do so and fails, that bylaw clearly become binding upon ICANN.] > >The combination of a 2/3 threshold and a >mandatory vote to reject GAC Advice creates a >presumption that GAC advice will be >accepted. This presumption is novel and clearly >elevates GAC Advice to a new level of deference within the ICANN process. > >Although none of this is explicitly stated in >the detailed explanation in Annex 11, the more I >consider this and the more people I talk to, the >more convinced I am that what I've laid out >above is exactly what was intended by some of >those involved in the drafting process for the >Bylaw revision, and the rest of us just didn't >see it at the time. Since it's not brought out >in the CCWG's explanation, this fundamental >change can "fly under the radar" until the Proposal is approved. > >I don't believe that this was the intention of >the CCWG. If it's not the intention of the >CCWG, then my alternative wording would remove >this concern. If this is in fact the intention >of the CCWG then I think it needs to be part of >the explanation set forth in the proposal, so >that the intent and effect are clear, and any >reader can clearly understand what we have wrought. > >Finally, I have to say that this is not an >"implementation level" concern. This is, if you >will, a "policy level" concern. If this gets >baked into the accepted proposal, then the >implementers will essentially be bound to carry >this out in the implementation (i.e., the >drafting of the "real" Bylaw language). Any >later attempt to change a concept stated in the >accepted and transmitted final proposal will >face a very high set of hurdles, at best. Now is the time to deal with this. > >Greg > > > >On Thu, Dec 17, 2015 at 3:22 PM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca > wrote: >Greg, you say that the current Bylaws do not >reference voting. The current wording ( ><https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j>https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j) >is "In the event that the ICANN Board determines >to take an action that is not consistent with >the Governmental Advisory Committee advice..." >How else is the Board able to formally decide on >anything other than by voting? >Alan >At 16/12/2015 03:09 AM, Greg Shatan wrote: > >All, >In reviewing the Third Draft Proposal, concerns >have been raised within my constituency that the >proposed Bylaw does more than replace an >existing "majority" threshold with a new "2/3" >threshold. The concern is that the proposed >Bylaw introduces a "mandatory vote" by the Board >in order to reject GAC Advice where the Bylaws >do not currently require a Board vote. Further, >there appears to be a concern that, if the Board >does not take a vote and affirmatively reject a >piece of GAC advice, then that GAC advice becomes binding on ICANN. >These concerns stem from a reading of the draft Bylaw (new language in red): >The advice of the Governmental Advisory >Committee on public policy matters shall be duly >taken into account, both in the formulation and >adoption of policies. In the event that the >ICANN Board determines to take an action that is >not consistent with the Governmental Advisory >Committee advice, it shall so inform the >Committee and state the reasons why it decided >not to follow that advice. Any Governmental >Advisory Committee advice approved by a full >Governmental Advisory Committee consensus, >understood to mean the practice of adopting >decisions by general agreement in the absence of >any formal objection, may only be rejected by a >vote of two-thirds of the Board, and tThe >Governmental Advisory Committee and the ICANN >Board will then try, in good faith and in a >timely and efficient manner, to find a mutually acceptable solution. > >ÃÂ¢Ã¢Â¹The ccurrent langanguage of the Bylaw >makes no reference to voting, only to the far >more ambiguous "determines to take an >action." As such, adding a reference to a vote >can be seen to add a new element (aside from the >introduction of a 2/3 threshold): the element of >a bylaws-mandated vote. Similarly, the >statement that GAC Advice can only be rejected >by a vote of the Board can be read to state that >if no such vote is taken (or if such vote is >taken and fails) that the GAC Advice is then >something ICANN is bound to follow. >I don't think either of these things were >intended by the CCWG. Whether they are >misreadings of our draft language or unintended >consequences of the drafting, this concern is >troubling. If it is the intent of some of those >drafting this language to force a vote where >none is currently required, then that is even more troubling. >I would appreciate some clarification on these >matters that I can bring back to my group. >I would also appreciate the CCWG considering a >change in language to remove this ambiguity >which is currently causing great consternation in my group. >I suggest the language below. This m >ore closely track >ÃÂ¢Ã¢Â¹sÃsÃÂ¢Ã¢Â¹

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Re: [CCWG-ACCT] Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)
by David Post Dec. 19, 2015

Dec. 19, 2015

At 03:58 PM 12/17/2015, Mueller, Milton L wrote: >[SNIP] >More responses to Becky in line below: > >BB: While I don't think that ICANN has the authority to demand that >the registry operator adopt such a policy, I have no problem >whatsoever with ICANN holding the registrant to that policy if it >was offered as part of the application. (Others may well disagree with me.) > >MM: I do disagree. One problem is that the line between what ICANN >demands and what is offered "voluntarily" by the registry is >unclear, and easily fudged, given ICANN's monopoly position. For >example, suppose someone applied for that TLD and the GAC and ALAC >advised that the applicant not be given the domain unless they >adopted such a policy. If this would be classified as the registry >"voluntarily" adopting the policy (because they will be denied entry >if they don't) it is very clearly an example of ICANN using its >monopoly control of the root to impose regulation on the users >[SNIP] I agree that the line between "voluntary" provisions and "mandatory" provisions is a difficult one to draw. But I'm not sure that means that it has to be abandoned, or that a well-formed IRP couldn't distinguish between the two. Some policies are imposed on registry operators (and/or on registrars and registrants) by virtue of an ICANN policy - those are relatively easy to characterize as "mandatory." The example you gave is much harder - but it does seem to me that it's not too difficult to characterize that as "mandatory" as well, and that the affected party would and should be able to make the argument you're making (i.e., that is an example of ICANN "using its monopoly control of the root to impose regulation of the users"), and that it would therefore have to be within the Mission to be valid. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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