July 2015 - Accountability-Cross-Community

4.2 Appeals Mechanisms - Reconsideration
by Izumi Okutani July 31, 2015

July 31, 2015

Becky, I noticed my suggestion to reflect the same language as the IRP on Reconsideration is not reflected here. Perhaps it wasn't obvious as it wasn't under the reconsideration thred. https://community.icann.org/download/attachments/52888740/28%20July%20Annot… It may be too late to be reflected considering the freezing time - if that's the case would you please confirm that it will be reflected in the final proposal for the submission. Thanks, Izumi My comment to WP2 list: http://mm.icann.org/pipermail/wp2/2015-July/000379.html CURRENT: In case of including the global number resources policy in its scope, further considerations should be made of its implications. The bottom up policy development process and its forum for the number resources is outside the ICANN, even though the ICANN Board approves its global policies, and the same mechanisms as the names related policies may not be applicable. SUGGESTED: (suggested earlier to WP2- the same language as IRP) Disputes related to Internet number resources are out of scope of the IRP.

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Fwd: African Union Commission Communiqué on the declaration of the Independent Review Panel
by Seun Ojedeji July 31, 2015

July 31, 2015

Hi, The recent AUC communiqué on .Africa could be of interest to this WG. A few thoughts/questions comes to mind that may be considered in WS2: - Apart from getting community "armed" for board, is/will the mechanism that has been setup ensure due diligence, fairness and compliance from the IRP as well? - Will the community mechanisms/powers that has been/will be given to the community ensure fairness on the board especially when it makes decisions in respect to GAC Advice. - Post transition, GAC would still give it's independent advice (which i have no issue with). Does the ccwg mechanisms provide ways to interact on these advice at community level thereby making the board decision making less tasking. Regards

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Re: [CCWG-ACCT] way forward and minority statements
by Edward Morris July 31, 2015

July 31, 2015

Hi everyone, I'm sorry I wasn't able to be on the calls today, that whole needing to earn money to pay rent thing, but I thank all those who were and compliment them on the vast amount of work they did in such a short period of time. In particular I want to commend Jordan and his crew: the voting mechanisms document looks great and hopefully will prompt some meaningful discussion throughout the community and beyond that will help us to determine the correct direction in which to go. I want to extend my deep and very personal thanks to our three Chairs and to our wonderful staff for making it possible to extend the deadline for minority reports and opinions for 24 hours. I want to thank our Ombudsman for weighing in on the matter on such short notice. The extension was important to me and to some members of my branch of the community. Because of your action a few of our volunteers who were on calls for several hours today are able to sleep right now and will be able to begin work on their reports fresh in the morning. Of greatest importance both actions, on the extension and the insertion of minority views on voting weights, reflects positively on our leadership, our group and our respect for diversity of opinion of all types. Deeply appreciated. As the status of the human rights issue has confused those who attended the calls you can imagine how confused those of us who were not able to attend feel. I would, however, like to weigh in on the issue as best I can. I do support inclusion of language directly related to human rights in the bylaws if for no other reason I believe the NTIA, on the basis of some of Keith Drazek's posts, would like to see it and from an American political perspective it would help shield our proposal from attack from the left. People are focusing on candidates from the right in America making our transition a political issue. Should ill winds blow it very easily could become an issue in the Democratic presidential or congressional primaries. The mention of human rights provides a practical political shield against such attacks. As to specific language, I strongly support Keith Drazek's proposal and commend the 80% of those voting who apparently supported it on call one today. The language comes from the NTIA. We should usually favour something like that if at all possible. Of greater importance, I know what free expression is. There is highly developed case law on the subject in both the USA and EU, amongst other locales. It doesn't all agree in outlook but consider this: Trademark law differs remarkably between jurisdictions and did to even a greater degree when the UDRP was first established. We didn't say, hey different standards, different perspectives, we don't know what it is...we defined it more through the processes we set up. The same will happen here. The problem with the other proposal, IMHO, is that it's harder to define. What international? What human right? What is fundamental? Now we'll eventually sort it out, we did for i.p. rights, so if it's that or nothing I'll accept it. I think we are taking a chance with both the NTIA and the American left if we consider inclusion and reject it. Still prefer Keith's more focused language. As for a concrete example, the type that Chris has asked for, one immediately comes to mind. In Singapore I spoke to our CEO about my fear that ICANN was getting into content regulation. He assured me we were not but let me know that sometimes it was hard to respond negatively to pressure to do so. He gave me an example of a major media mogul who recently tried to get ICANN to take some stuff offline. Major mogul. I was told to keep pressing the issue, that community pressure better allowed him to resist opposing pressures to censor. Well, a bylaw declaring that ICANN is committed to the free flow of information snd to free expression is an even better tool for our future CEO to use to resist pressures to censor content. In my book, that's a good thing. As to the way forward...what I see in the notes is: 1) agreement over the course of two meetings to include "something" in the bylaws related to human rights, 2) a 16-4 vote in meeting one in favour of Keith's proposal and 3) an 11-8 vote in meeting two in favour of Greg's proposal when it was matched against Keith's. Two comments: 1. I note that Keith apparently was unable to attend the second call to defend and / or explain his proposal and 2. We have a rule here that we don't make decisions on the basis of one meeting. Thus, if the notes fit reality I'd suggest noting in the document that there was consensus for including "something" related to human rights in the Bylaws (this seems to be the majority opinion in two consecutive meetings) but there was a difference as to what that something should be. List the proposals that received support and let the community weigh in. Just an idea...I, of course, was unable to attend the calls today due to work commitments so could have things wrong. If so, please accept my apology. Thanks again to everyone who was able to attend the calls today. An impressive performance under extreme pressure. Kind Regards, Ed Morris ---------------------------------------- From: "James Gannon" <james(a)cyberinvasion.net> Sent: Thursday, July 30, 2015 10:22 PM To: "Robin Gross" <robin(a)ipjustice.org>, "Carlos Raul Gutierrez" <crg(a)isoc-cr.org> Cc: "accountability-cross-community(a)icann.org" <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] way forward and minority statements Agreed Robin and I also want to strongly add my support for including Keiths language in the WS1 proposal, I was unable to make the call today but would have made a very strong intervention to support its inclusion as a very key part that was framed using NTIAs own language. -James ---------------------------------------- From: accountability-cross-community-bounces(a)icann.org <accountability-cross-community-bounces(a)icann.org> on behalf of Robin Gross <robin(a)ipjustice.org> Sent: 30 July 2015 17:49 To: Carlos Raul Gutierrez Cc: accountability-cross-community(a)icann.org Subject: Re: [CCWG-ACCT] way forward and minority statements Actually, Keith's proposed wording is very close to the international standard on this point. UNDHR Article 19 guarantees "the right to seek, receive, and impart information and ideas through any medium and regardless of frontiers" which is another way of saying "free flow of information". Personally, I would be fine with replacing "free flow of info" with the exact language in article 19 just quoted, but I think Keith's proposed text of "free flow of information" is a much more succinct way of saying the same thing. Thanks, Robin On Jul 30, 2015, at 9:16 AM, Carlos Raul Gutierrez wrote: Dear Steve, Maybe Tunis agenda or anything related to the information society we live in? In any case, if we can go at least a little step further than the strict language of 1st anmendemnt, so it sounds more modern and international would be a great step forward. Best Carlos Raúl On Jul 30, 2015 10:00 AM, "Steve DelBianco" <sdelbianco(a)netchoice.org> wrote: The compromise text says "fundamental human rights of the exercise of free expression and the free flow of information". But I do not find "free flow if information" on the UN list of fundamental human rights. Where is that right stated as fundamental? From: <accountability-cross-community-bounces(a)icann.org> on behalf of Greg Shatan Date: Thursday, July 30, 2015 at 11:47 AM To: Stephanie Perrin Cc: "accountability-cross-community(a)icann.org" Subject: Re: [CCWG-ACCT] way forward and minority statements Nobody has to publish their confidential information to the world in order to register a domain name. Privacy/proxy services are readily available and there is no formal proposal to take that away from anyone. I agree we can and should take this debate elsewhere, since it is a nuanced one, and there has been much misinformation spread on the topic. However, if adding the proposed language to the Bylaws changes how ICANN should " determine where the human rights obligations fall" in the policy-making process relating to this issue, then this is a very significant change. Greg On Thu, Jul 30, 2015 at 11:31 AM, Stephanie Perrin <stephanie.perrin(a)mail.utoronto.ca> wrote: No actually I am referring to scammers, spammers, doxxers, and really irritating (but not criminal) commercial elements who mine the WHOIS database to pursue innocent folks who have to publish their confidential information to the world in order to register a domain name. A public directory is not the way to control lawbreakers who hide behind proxy services, as has been amply debated in the recent PPSAI public comments period. Anyway lets take this debate elsewhere as it does not contribute much to the topic. Except, I would point out, that the risk balance between the harm done by public disclosure through WHOIS has changed in the 17 years that the Internet has been growing up, and it is time to revisit who is at risk, and determine where the human rights obligations fall. As you can tell, I believe privacy and the people who need it are more at risk today than law enforcement operations (who can find the registrars and the ISPs, and request the data they need there, in addition to more relevant info such as payment details). Disclosure of address and phone numbers is permanent and irrevocable thanks to value added services that have grown up to mine the WHOIS data. kind regards, Stephanie On 2015-07-30 11:18, Greg Shatan wrote: Stephanie, Are you referring to the criminal element who knows how to use WHOIS to hide themselves? That is certainly a huge problem and not limited to violations of criminal law -- it is also a huge problem with regard to lawbreakers whose actions are not criminal in nature. Greg On Thu, Jul 30, 2015 at 11:05 AM, Stephanie Perrin <stephanie.perrin(a)mail.utoronto.ca> wrote: Totally agree Nigel, but providing access to law enforcement is not the same as publishing to the world, and the criminal element who know how to use WHOIS. At the moment, options for nuanced disclosure are limited. SP On 2015-07-30 11:00, Nigel Roberts wrote: Stephanie The whole debate about the right to private and family life is more nuanced. Without turning this list into a discussion on how respect for human rights is guaranteed on this contintent, it's worth pointing out that respecting the right of privacy does NOT mean closing off domain registration data to law enforcment. Quite the opposite. The privacy right is a qualified right -- so it CAN be interfered with - lawfully, when necessary in a democratic society; so long as it is - proportionate. And I don't think that conflicts with anybody's 'marching orders'. On 30/07/15 15:53, Stephanie Perrin wrote: I hate to complicate this discussion, but I feel duty bound to point out that the first human right many people think of these days with respect to the domain name registration system is privacy. Freedom of expression and the openness of the Internet rolls more easily off the tongue....but if anyone says what about privacy, the WHOIS would have to be re-examined. This of course conflicts with the marching orders that the NTIA has had for ICANN since its inception. Stephanie Perrin On 2015-07-30 5:59, Erika Mann wrote: In addition to Avri's points, such a provision could help as well to ensure that future business models that relate to more sensitive strings (.gay for example) will continue to be treated as any other string. Erika On Thu, Jul 30, 2015 at 11:42 AM, Avri Doria <avri(a)acm.org <mailto:avri@acm.org>> wrote: Hi, Off the top of my head, I think a first thing we would have to do would be to start understanding the impact, if any, of ICANN operations and policies on human rights. Some of this work is already starting in the human rights working party (HRWP), though that is a rather informal beginning. I would also think that some part of the staff would need to start taking these issues into consideration. I do not think that it would cause any serious changes in the near future but would make us more aware as time went on, and would give us a basis for discussion both in the HRWP and in the ACSO and Board. In terms of the specific things it might limt us from, and this would require some analysis on specifc events, might be creating any kinds of policies or operations that forced limitation of content, beyond the limitations required by law for incitement, on domain named sites. It would in fact strengthen our postion in that respect. Most important though, it would cover a hole left by the loss of the NTIA backstop, on any issue concerning freedom of expression, free flow of information or openness of the Internet. thanks avri > > On Jul 30, 2015, at 11:01 AM, Chris Disspain <ceo(a)auda.org.au <mailto:ceo@auda.org.au> > <mailto:ceo@auda.org.au <mailto:ceo@auda.org.au>>> wrote: > >> Keith, >> >> This looks interesting. Could we think of an example of something >> concrete ICANN would have to do if it made this commitment? Or >> something it would not be able to do? >> >> >> >> Cheers, >> >> >> Chris >> >> >>> On 30 Jul 2015, at 18:16 , Drazek, Keith <kdrazek(a)verisign.com <mailto:kdrazek@verisign.com> >>> <mailto:kdrazek@verisign.com <mailto:kdrazek@verisign.com>>> wrote: >>> >>> Hi Avri, >>> >>> In order to tie your suggestion directly to the language in >>> Secretary Strickling's April 2014 written congressional testimony >>> (included in a prior email) and to reduce concerns about scope >>> creep, would language along these lines be acceptable to you? >>> >>>> "Within its mission and in its operations, ICANN will be committed >>>> to respect the fundamental human rights of the exercise of free >>>> expression and the free flow of information." >>> >>> Speaking personally, I could probably support this formulation. To >>> be clear, I have not discussed this with the RySG, but it's >>> consistent with the requirements outlined by NTIA so I think it's >>> certainly worth considering. >>> >>> I'm not advocating including this in the Bylaws, but I'm not >>> objecting to it either. However, if we don't reach consensus for >>> adding to the Bylaws, I definitely think this is worth further >>> consideration in WS2 and would support an explicit reference using >>> this or similar language and timetable for doing so. >>> >>> Regards, >>> Keith >>> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Fwd: Malcom Hutty/ BBurr Consolidated draft on IRP text
by Mathieu Weill July 31, 2015

July 31, 2015

Dear Colleagues, FYI, feedback from our lawyers on the IRP text. Becky is implementaing changes. -------- Message transféré -------- Sujet : [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Date : Fri, 31 Jul 2015 00:04:02 +0000 De : Gregory, Holly <holly.gregory(a)sidley.com> Pour : León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr>, Becky Burr <Becky.Burr(a)neustar.biz>, Grace Abuhamad <grace.abuhamad(a)icann.org>, acct-staff(a)icann.org <acct-staff(a)icann.org> Copie à : Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com>, Rosemary E. Fei <rfei(a)adlercolvin.com> Dear Co-Chairs, We have reviewed the IRP draft and have relatively few comments. Overall it looks in good shape. We do have one significant concern however and it relates to the following paragraph which was added in the very last draft: _20 b. CCWG-Accountability confirms that the IRP Panel has the power to stay a Board decision or action. It further recommends that it also have the power to require ICANN to take a decision or action on an interim basis, until the Board has had a chance to consider and decide how to implement an IRP Panel decision._ We strongly recommend this paragraph be deleted. We believe that it is not only unenforceable but that it is inconsistent with California law and the fiduciary duties of directors (as indicated in prior memos). We also urge extreme caution in the next several days with these types of last minute additions and language changes. Holly and Rosemary *HOLLY**J.**GREGORY* Partner *Sidley Austin LLP** *+1.212.839.5853 holly.gregory(a)sidley.com <mailto:holly.gregory@sidley.com> *From:*León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] *Sent:* Thursday, July 30, 2015 6:17 PM *To:* Gregory, Holly; Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; Thomas Rickert; Mathieu Weill; Becky Burr *Subject:* Fwd: [CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text Dear Holly, dear Rosemary, Sorry for briefness. Here are redline versions of the IRP document for your review and comments Saludos, León Enviado desde el móvil. Disculpa brevedad y errores tipográficos. Inicio del mensaje reenviado: *De:* "Burr, Becky" <Becky.Burr(a)neustar.biz <mailto:Becky.Burr@neustar.biz>> *Fecha:* 30 de julio de 2015, 4:06:11 PM CDT *Para:* Accountability Community <accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org>> *Asunto:* *[CCWG-ACCT] Malcom Hutty/ BBurr Consolidated draft on IRP text* And if you do not see redlines in each document, I need a new computer. J. Beckwith Burr *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=AwMFa…> **************************************************************************************************** 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 - IRP
by Bernard Turcotte July 31, 2015

July 31, 2015

All, Please find what is hoped is the final version of the IRP text from Becky which includes Izumi's suggested edit. Cheers. B.

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Follow up about Accountability Mechanisms text
by Izumi Okutani July 31, 2015

July 31, 2015

Dear all, I have to go for another call. Since there was not time to raise at the call while I was there, I would like to follow up by e-mail on the point I raised at the last call on the text for Accountability Mechanisms. I would like to make the text suggstion below. Accountability Mechanisms (P2) CURRENT ICANN Board (i.e., the executive) is responsible for directing ICANN��s affairs and is held accountable to the community through the community��s powers o The Board also conducts regular Structural Reviews of the various SOs and ACs. These Reviews include an assessment of SO and AC accountability to their respective communities, along with regular participants as well as the wider communities they are designed to represent. " SUGGESTED ICANN Board (i.e., the executive) is responsible for directing ICANN��s affairs and is held accountable to the community through the community��s powers The Board requires that periodic Structural Reviews be conducted and that such reviews include an independent assessment of SO and AC accountability to their respective communities. These reviews should include input from the wider community that each SOs and ACs is designed to represent. Izumi on behalf of the ASO

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Updated Stress Tests Document
by Grace Abuhamad July 31, 2015

July 31, 2015

Dear all, Here attached is the updated Stress Tests document for the freeze. Best, Grace From: <acct-staff-bounces(a)icann.org> on behalf of Steve DelBianco <sdelbianco(a)netchoice.org> Date: Thursday, July 30, 2015 at 4:58 PM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Cc: ACCT-Staff <acct-staff(a)icann.org> Subject: [Acct-Staff] Revised draft for Stress Test 18 and bylaws change (after our second call today) This is updated per discussion we just had on the CCWG call, and in subsequent emails and chats revealing confusion about the text. I also reviewed existing GAC Operating Principles <https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles> , and the GAC does not actually define ³consensus². Instead, they describe a process for providing advice to ICANN. New text is below and attached (yellow text shows the 2 changes from our 3-May draft proposal): > > The CCWG-Accountability proposes a response to Stress Test 18 to amend the > ICANN Bylaws such that only consensus advice would trigger the obligation to > try to find a mutually acceptable solution. The proposal is to amend ICANN > Bylaws, Article XI Section 2 clause j as seen below. (Addition is bold and > underlined) Clause k is also shown for completeness but is not being > amended. >> j: 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. With respect to Governmental Advisory Committee advice >> that is supported by consensus, 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. >> k: If no such solution can be found, the ICANN Board will state in its final >> decision the reasons why the Governmental Advisory Committee advice was not >> followed, and such statement will be without prejudice to the rights or >> obligations of Governmental Advisory Committee members with regard to public >> policy issues falling within their responsibilities. > Note that the proposed Bylaws change for Stress Test 18 does not interfere > with the GAC¹s method of decision-making. If the GAC decided to adopt advice > by majority voting or methods other than today¹s consensus process, ICANN > would still be obligated to give GAC advice due consideration: ³advice shall > be duly taken into account, both in the formulation and adoption of policies.² > Moreover, ICANN would still have to explain why GAC advice was not followed: > ³In 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.² > The only effect of this Bylaws change is to limit the kind of advice where > ICANN is obligated to ³try, in good faith and in a timely and efficient > manner, to find a mutually acceptable solution². That delicate and sometimes > difficult consultation requirement would only apply for GAC advice that was > approved by consensus. > The GAC currently uses the following consensus rule for its decisions: > ³consensus is understood to mean the practice of adopting decisions by general > agreement in the absence of any formal objection.² The proposed bylaws change > above recognizes that GAC may at its discretion amend its Operating Principle > 47 regarding "Provision of Advice to the ICANN Board". > NTIA gave specific requirements for this transition, including advice that > Stress Test 18 is a direct test of the requirement to avoid significant > expansion of the role of governments in ICANN decision-making. The proposed > Bylaws change is therefore an important part of the community¹s proposal. > It is noted that GAC Representatives are continuing to discuss the proposal. >

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Revised draft for Stress Test 18 and bylaws change (after our second call today)
by Steve DelBianco July 31, 2015

July 31, 2015

This is updated per discussion we just had on the CCWG call, and in subsequent emails and chats revealing confusion about the text. I also reviewed existing GAC Operating Principles<https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles>, and the GAC does not actually define “consensus”. Instead, they describe a process for providing advice to ICANN. New text is below and attached (yellow text shows the 2 changes from our 3-May draft proposal): The CCWG-Accountability proposes a response to Stress Test 18 to amend the ICANN Bylaws such that only consensus advice would trigger the obligation to try to find a mutually acceptable solution. The proposal is to amend ICANN Bylaws, Article XI Section 2 clause j as seen below. (Addition is bold and underlined) Clause k is also shown for completeness but is not being amended. j: 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. With respect to Governmental Advisory Committee advice that is supported by consensus, 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. ‬ k: If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬ Note that the proposed Bylaws change for Stress Test 18 does not interfere with the GAC’s method of decision-making. If the GAC decided to adopt advice by majority voting or methods other than today’s consensus process, ICANN would still be obligated to give GAC advice due consideration: “advice shall be duly taken into account, both in the formulation and adoption of policies.” Moreover, ICANN would still have to explain why GAC advice was not followed: “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.” The only effect of this Bylaws change is to limit the kind of advice where ICANN is obligated to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”. That delicate and sometimes difficult consultation requirement would only apply for GAC advice that was approved by consensus. The GAC currently uses the following consensus rule for its decisions: “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.” The proposed bylaws change above recognizes that GAC may at its discretion amend its Operating Principle 47 regarding "Provision of Advice to the ICANN Board". NTIA gave specific requirements for this transition, including advice that Stress Test 18 is a direct test of the requirement to avoid significant expansion of the role of governments in ICANN decision-making. The proposed Bylaws change is therefore an important part of the community’s proposal. It is noted that GAC Representatives are continuing to discuss the proposal.

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Re: [CCWG-ACCT] revised text for Stress Test 18
by Tracy Hackshaw July 31, 2015

July 31, 2015

+1 Sent from my Fire On July 31, 2015, at 10:03 AM, Jorge.Cancio(a)bakom.admin.ch wrote: Dear all I feel both statements perfectly complement each other: i. e. from the start the rule was of consensus and in 2011 the modality traditionally pursued was specified in our OP. Perhaps I left that aspect too open but happily Suzanne (no newcomer either 😉), has rightly closed the gap. regards Jorge Von meinem iPhone gesendet > Am 31.07.2015 um 15:06 schrieb Suzanne Radell <SRadell(a)ntia.doc.gov>: > > Hi all, and while not intending to disagree with Jorge, as one of the GAC's "old timers" (first meeting was October 2003), I can confirm that the long tradition in the GAC was in fact consensus. And the fact that it had been the normal practice for such a long time is one (just one, the others were the ATRT recommendations and the need for a definition in the new gTLD applicant guidebook) reason the GAC was willing and able to confirm the UN definition as the basis for policy development in 2011. Cheers, Suz > > Suzanne Murray Radell > Senior Policy Advisor, NTIA/OIA > sradell(a)ntia.doc.gov > 202-482-3167 > > -----Original Message----- > From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio(a)bakom.admin.ch > Sent: Thursday, July 30, 2015 2:58 PM > To: sdelbianco(a)netchoice.org > Cc: acct-staff(a)icann.org; accountability-cross-community(a)icann.org > Subject: Re: [CCWG-ACCT] revised text for Stress Test 18 > > Dear all > > If my recollection is right consensus within GAC was only defined in 2011. > > So perhaps qualifying it as "strong" consensus and quoting part of the definition adopted only in 2011 is not entirely accurate. > > We should probably stick to the exact facts. Also -as is done- that GAC is still trying to reach common ground on this topic. > > regards > > Jorge > > Von meinem iPhone gesendet > > Am 30.07.2015 um 20:52 schrieb Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>>: > > Updated per discussion we just had on the CCWG call: > Note that the proposed Bylaws change for Stress Test 18 does not interfere with the GAC's method of decision-making. If the GAC decided to adopt advice by majority voting or methods other than today's consensus process, ICANN would still be obligated to give GAC advice due consideration: "advice shall be duly taken into account, both in the formulation and adoption of policies." > Moreover, ICANN would still have to explain why GAC advice was not followed: "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." > The only effect of this Bylaws change is to limit the kind of advice where ICANN is obligated to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution". That delicate and sometimes difficult consultation requirement would only apply for GAC advice that was approved by consensus. > From the beginning of ICANN through the present, the GAC has used a strong consensus rule for its decisions, "consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection." The proposed bylaws change recognizes that GAC may wish to consider, if necessary, amending its consensus rule to something less than "in the absence of any formal objection" while still requiring ICANN to try "to find a mutually acceptable solution." > NTIA gave specific requirements for this transition, including advice that Stress Test 18 is a direct test of the requirement to avoid significant expansion of the role of governments in ICANN decision-making. The proposed Bylaws change is therefore an important part of the community's proposal. > It is noted that GAC Representatives are continuing to discuss the proposal. > > > > From: Steve DelBianco > Date: Thursday, July 30, 2015 at 11:25 AM > To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" > Cc: ACCT-Staff > Subject: revised text for Stress Test 18 > > Per this morning's CCWG call, I drafted 2 paragraphs for ST 18 (see yellow text attached and below). > > First is to remind GAC that they can define consensus. > Second is to note dissent from 3 GAC reps and that GAC is still discussing. > > Note that the proposed Bylaws change for Stress Test 18 does not interfere with the GAC's method of decision-making. If the GAC decided to adopt advice by majority voting or methods other than today's consensus process, ICANN would still be obligated to give GAC advice due consideration: "advice shall be duly taken into account, both in the formulation and adoption of policies." > Moreover, ICANN would still have to explain why GAC advice was not followed: "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." > The only effect of this Bylaws change is to limit the kind of advice where ICANN is obligated to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution". That delicate and sometimes difficult consultation requirement would only apply for GAC advice that was approved by consensus. > From the beginning of ICANN through the present, the GAC has used a strong consensus rule for its decisions, "consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection." The proposed bylaws change recognizes that GAC may amend its consensus rule to something less than "in the absence of any formal objection" while still requiring ICANN to try "to find a mutually acceptable solution." > NTIA gave specific requirements for this transition, including advice that Stress Test 18 is a direct test of the requirement to avoid significant expansion of the role of governments in ICANN decision-making. The proposed Bylaws change is therefore an important part of the community's proposal. > It is noted that GAC Representatives from Argentina, Brazil, and France do not support the proposed Bylaws change, and the GAC is continuing to discuss the proposal. > > _______________________________________________ > Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > _______________________________________________ > Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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revised text for Stress Test 18
by Steve DelBianco July 31, 2015

July 31, 2015

Per this morning’s CCWG call, I drafted 2 paragraphs for ST 18 (see yellow text attached and below). First is to remind GAC that they can define consensus. Second is to note dissent from 3 GAC reps and that GAC is still discussing. Note that the proposed Bylaws change for Stress Test 18 does not interfere with the GAC’s method of decision-making. If the GAC decided to adopt advice by majority voting or methods other than today’s consensus process, ICANN would still be obligated to give GAC advice due consideration: “advice shall be duly taken into account, both in the formulation and adoption of policies.” Moreover, ICANN would still have to explain why GAC advice was not followed: “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.” The only effect of this Bylaws change is to limit the kind of advice where ICANN is obligated to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”. That delicate and sometimes difficult consultation requirement would only apply for GAC advice that was approved by consensus. From the beginning of ICANN through the present, the GAC has used a strong consensus rule for its decisions, “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.” The proposed bylaws change recognizes that GAC may amend its consensus rule to something less than “in the absence of any formal objection” while still requiring ICANN to try “to find a mutually acceptable solution.” NTIA gave specific requirements for this transition, including advice that Stress Test 18 is a direct test of the requirement to avoid significant expansion of the role of governments in ICANN decision-making. The proposed Bylaws change is therefore an important part of the community’s proposal. It is noted that GAC Representatives from Argentina, Brazil, and France do not support the proposed Bylaws change, and the GAC is continuing to discuss the proposal.

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