Oops, not a Freudian mistake, though it might look like one. Last sentence should read: "In that case, “proceeding withOUT the GAC’s agreement” might very well be impossible" Groet, Roelof From: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: donderdag 12 november 2015 15:05 To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. 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: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith 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: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.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. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. 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.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ 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