I believe that the concern expressed by Edward and Paul is based upon the fact that the language requires the Board to seek a mutually acceptable solution with the GAC whenever there is GAC advice supported by a “consensus”. The dictionary definition of consensus is just general agreement. GAC advice supported by a simple majority would probably not meet that standard (although a future GAC might disagree). But the current GAC standard of regarding consensus as being present only when there is broad agreement and no objections is about the highest possible standard, and the GAC could alter its means of reaching consensus advice by a simple majority vote at any time post-transition and still arguably and credibly contend that it represents a consensus. In that regard, it could point to Article X, Section 3 of the ICANN bylaws, which reads: 9. Except as otherwise specified in these Bylaws, Annex A hereto, or the GNSO Operating Procedures, the default threshold to pass a GNSO Council motion or other voting action requires a simple majority vote of each House. The voting thresholds described below shall apply to the following GNSO actions: … j. Approve a PDP Recommendation Imposing New Obligations on Certain Contracting Parties: where an ICANN contract provision specifies that "a two-thirds vote of the council" demonstrates the presence of a consensus, the GNSO Supermajority vote threshold will have to be met or exceeded. … l. A "GNSO Supermajority" shall mean: (a) two-thirds (2/3) of the Council members of each House, or (b) three-fourths (3/4) of one House and a majority of the other House." The GAC could readily point to that language (unless it is to be changed, although I don’t believe there is a proposal to do so) and make a very credible case that a policy position receiving 2/3 support within the GAC constitutes both a consensus and a supermajority, even if the remaining 1/3 of the GAC was vigorously opposed to it. Such a future change in GAC consensus procedures is certainly possible, especially given some of the views expressed by GAC members in the document titled “INPUT FROM GAC MEMBERS TO MEETING OF CCWG-ACCOUNTABILITY: Paris, 17-18 July 2015”. The question is whether the very real possibility of such a future change in GAC procedures, and the absence of proposed Bylaws language changes that would relieve the Board of being obliged to seek a mutually acceptable solution with the supermajority of prevailing GAC members, notwithstanding the vocal dissent of the remaining 1/3, would violate this provision of NTIA’s March 14, 2014 Transition announcement: Consistent with the clear policy expressed in bipartisan resolutions of the U.S. Senate and House of Representatives (S.Con.Res.50 and H.Con.Res.127), which affirmed the United States support for the multistakeholder model of Internet governance, NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution. Given that the remaining formal NTIA role is nothing more than what it has described as a “clerical function”, a hyper-literal reading of that phrase could be the basis for contending that the possibility of such GAC procedural change does not violate the letter of the NTIA condition as the GAC would not be replacing “the NTIA role”. On the other hand, an argument could be made that such a possibility violates its spirit in that the hypothetical situation I have described would permit a supermajority of governments within the GAC to provide advice to the Board that will be highly influential, resulting in a “government-led” ICANN. That is a determination that only the Obama Administration and the U.S. Congress can make once a final transition package is delivered for review. But the proposed Bylaws amendment in no way prevents the GAC from changing its internal definition of consensus, nor does it relieve the ICANN Board of the obligation to seek a mutually acceptable solution with a GAC supermajority position. Of course the Board could refuse to accept the GAC advice, but if one of the reasons for doing so was that it did not regard the advice as being backed by the Board’s view of what constitutes a consensus then that would set it on a collision course with a majority of GAC members. My personal view is that the Bylaws should be modified to minimize the possibility of such a future clash. 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 From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Friday, July 31, 2015 9:12 AM To: egmorris1@toast.net; Paul Rosenzweig; accountability-cross-community@icann.org Cc: ACCT-Staff Subject: Re: [CCWG-ACCT] Revised draft for Stress Test 18 and bylaws change (after our second call today) Thanks, Paul (and Ed). Let’s be clear that the only bylaw amendment proposed is to add the underlined text in "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.” In that respect, the board could ask the GAC for the level of consensus for GAC advice it receives. If the GAC changes their decision-making procedure from what it is today, they just need to be transparent about the support, just as other ACs and Sos do when providing advice or policy to the board. From: Edward Morris Reply-To: "egmorris1@toast.net<mailto:egmorris1@toast.net>" Date: Friday, July 31, 2015 at 6:03 AM To: Paul Rosenzweig, Steve DelBianco, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Cc: ACCT-Staff Subject: Re: [CCWG-ACCT] Revised draft for Stress Test 18 and bylaws change (after our second call today) I completely agree with Paul. We need to be very careful about any uncertainty concerning the role of governments in ICANN going forward. The proposed language, IMHO, is too vague as to prevent concern. ________________________________ From: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Sent: Friday, July 31, 2015 7:25 AM To: "Steve DelBianco" <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Cc: "ACCT-Staff" <acct-staff@icann.org<mailto:acct-staff@icann.org>> Subject: Re: [CCWG-ACCT] Revised draft for Stress Test 18 and bylaws change (after our second call today) I regret I was not able to join you today. Like Ed, I had to work. Unfortunately, I think that this solution does not satisfy the NTIA’s criteria. Indeed, when read in conjunction with the notes of the meeting which explicitly acknowledge that the GAC may change its definition of consensus, it goes a long way in the wrong direction. We note a truism – that the GAC has in the past provided consensus advice to the Board triggering the strong consultation requirement. And we note the truism that the GAC is free at any time to modify its operating principle. No one can doubt either. But the gap remains – who defines what constitutes “advice that is supported by consensus” triggering the obligation to enter into good faith discussions. As suggested by the notes, we are implicitly accepting that the GAC’s definition of its own consensus controls. I would decline to follow that route. The Bylaw should leave the Board free to reject a designation of “consensus” by the GAC that it determined was not really supported by true consensus. I imagine that some of my GAC colleagues think differently and think that the GAC’s determination of what constitutes consensus is binding on the Board. But that means that To put it in concrete terms, imagine that the GAC adopts a rule of something like “very rough consensus” and sends the Board a recommendation backed by, say, 70% of those governments who opined. Is the Board obliged to accept that designation or may it say that it has no mandatory negotiation obligation because that was not true consensus? What about 60%? If the bylaws are read to allow the GAC to define consensus as it wishes and bind the Board to finding a mutually acceptable solution, I am reasonably sure we will not be seen as meeting the NTIA criteria … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, July 30, 2015 4:58 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>> Subject: [CCWG-ACCT] 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 “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. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6037 / Virus Database: 4392/10258 - Release Date: 07/18/15 Internal Virus Database is out of date.