Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> __________ On Nov 12, 2015, at 6:00 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: I should also add that much as I agree with the amendments that Mark and Finn have proposed which =might= be useful, the GAC has not accepted them. So a final question for Pedro and Olga rather than Roelof – do you accept the amendmendatory suggestions made by Mark C and Finn? 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: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Thursday, November 12, 2015 2:42 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear all, After improving the proposal with the remarks made by some GAC members (especially Mark and Finn), I fail to understand why most commenters on this proposal, instead of starting from what they do like and what the CCWG could work with, start with what they do not like and cannot live with. I do know that it is a very effective way not to converge and not make any progress. Which seems to be exactly what is happening. On a much higher level, I find it almost unbelievable that some think that, in an global environment where our economies and societies become rapidly very dependent on the internet (and with that, on the DNS), we can prevent governments from getting the fair share of influence that has to come with the tasks societies give them. Yes, some governments want more and one has to be alert, but that is also true for the private sector. I think Pedro’s proposal, with the amendments suggested, in the basis is a way out of the mess that stress test 18 has become, that will actually work. Quite a few argue that "This would be a significant expansion of the current role and influence of the GAC”. That might be the case, but, with the powers we foresee, the influence of ALL stakeholders would significantly expand. That’s the whole idea behind enhancing ICANN’s accountability (to the community). Moreover, as Avri remarked earlier, "what is most important is that the board can reject GAC/AC's advice and that it learns how to do so when that is appropriate". Through the new powers, the (rest of the) community can make sure it can and does so when appropriate. So, I have no serious problem with aligning the threshold for rejection of consensus GAC advice with the SO’s and set it at 2/3rds. And as we know, it is not something new either; as the ATRT’s recognized this (and did so with the present accountability structure and without narrowing it’s applicability down to consensus advice, as far as I know). In line with how this is for the other constituencies, I find it no more than logic that the GAC determines what consensus GAC advice is and how it arrives at it. The phrase "the advice provided is clear and reflects the consensus view of the committee” in the proposal helps there: there’s objectively not a lot of maneuvering space before an advice will evidently NOT be consensus advice and can be rejected on that ground. I would agree that a single objection in a large group (as e.g. the GAC), falls within that maneuvering space, if the relevant SO or AC would so decide. Concluding: with the incorporation of the remarks mentioned, and in the absence of public statements of disagreement from GAC members, I urge us to put the proposed bylaw texts in our proposal and conclude the work on Stress Test 18. Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> Date: maandag 9 november 2015 11:28 To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion 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

Dear Steve After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report. I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues. "see" you all in some hours Jorge Von meinem iPhone gesendet Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Per Brett’s request for a recap: GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text) "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. Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs: 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. I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already. For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members. I feel we are very close, and could merge these two alternatives into one. Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice. As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice. I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC. Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again). The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition. —Steve From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days. <Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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

As I understand it, Pedro is proposing a significant expansion of GAC authority as compared to the status quo. Currently, the Board, if it decides not to follow GAC advice, is required to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice." Pedro is proposing raising the threshold for the Board to reject GAC advice from a simple majority to a two-thirds majority. He is also proposing changing the standard from the "advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" into one where the Board must give GAC advice "due deference." Pedro apparently is opposed to the idea that the bylaws should restrict the privileged treatment of GAC advice only when that advice is supported by the current definition of GAC consensus in Operating Principle 47, i.e. without formal objection. I may be wrong, but that is the impression I get from his insistence that in providing advice to the Board "each Advisory Committee has the right to determine its particular definition of consensus." In sum, Pedro is proposing changes more radical than those that raised near unanimous opposition when the Board entertained it last year. No thanks. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> ________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Olga Cavalli [olgacavalli@gmail.com] Sent: Thursday, November 12, 2015 9:39 PM To: Jorge.Cancio@bakom.admin.ch Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Steve I agree with Jorge's comments. regards Olga

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:

Per Brett’s request for a recap:

GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

—Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Good summation Sent from my BlackBerry 10 smartphone. 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 Original Message From: Schaefer, Brett Sent: Thursday, November 12, 2015 10:34 PM To: Olga Cavalli; Jorge.Cancio@bakom.admin.ch Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion As I understand it, Pedro is proposing a significant expansion of GAC authority as compared to the status quo. Currently, the Board, if it decides not to follow GAC advice, is required to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice." Pedro is proposing raising the threshold for the Board to reject GAC advice from a simple majority to a two-thirds majority. He is also proposing changing the standard from the "advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" into one where the Board must give GAC advice "due deference." Pedro apparently is opposed to the idea that the bylaws should restrict the privileged treatment of GAC advice only when that advice is supported by the current definition of GAC consensus in Operating Principle 47, i.e. without formal objection. I may be wrong, but that is the impression I get from his insistence that in providing advice to the Board "each Advisory Committee has the right to determine its particular definition of consensus." In sum, Pedro is proposing changes more radical than those that raised near unanimous opposition when the Board entertained it last year. No thanks. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> ________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Olga Cavalli [olgacavalli@gmail.com] Sent: Thursday, November 12, 2015 9:39 PM To: Jorge.Cancio@bakom.admin.ch Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Steve I agree with Jorge's comments. regards Olga

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:

Per Brett’s request for a recap:

GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

—Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Pedro, With respect, you are engaging in word games. Nothing you say below changes any of my points. The Board may currently be committed to finding a mutually acceptable solution, but you seek to make it compulsory. You want to raise the rejection requirement to 2/3 of the Board. The rules on PDPs do not alter this fact. You are proposing a change from the status quo. You are unwilling to commit to the current rules on consensus in exchange for these changes. These points are all correct. Brett

Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org On Nov 13, 2015, at 2:59 AM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:

Dear Bret,

With all due respect, many of the points you have raised below are simply not correct.

There is no intention whatsoever to change the standard or nature of the GAC advice given to the Board.

As I said previously to Keith, 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 of restrictive nature, i.e. it is not adding new elements, but rather referring to a current practice (Board engaged in finding a mutually accepted solution) that now would require consensus advice.

And, again, there are no radical changes being proposed. The suggested language does not only preserve the advisory nature of the GAC with regards to the ICANN Board, it actually restricts it by imposing the requirement of the advice having to be reached based on consensus. And as others have very wisely indicated, raising the rejection threshold to 2/3 makes it equivalent to the rejection threshold applied e.g. to PDPs, thus not changing at all the relative influence of the GAC advice in ICANN's decision-making system.

Finally, as a member of the GAC, Brazil supports all its Operating Principles, including OP 47. We also support the notion - which is implicit is this very OP and concurs with GAC's consensus position put forth in the ICANN 54 communiqué - that is up to the GAC itself to determine what the definition it will apply to its consensus based decisions.

Pedro

________________________________________ De: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de Schaefer, Brett [Brett.Schaefer@heritage.org] Enviado: sexta-feira, 13 de novembro de 2015 1:32 Para: Olga Cavalli; Jorge.Cancio@bakom.admin.ch Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

As I understand it, Pedro is proposing a significant expansion of GAC authority as compared to the status quo.

Currently, the Board, if it decides not to follow GAC advice, is required to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice."

Pedro is proposing raising the threshold for the Board to reject GAC advice from a simple majority to a two-thirds majority.

He is also proposing changing the standard from the "advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" into one where the Board must give GAC advice "due deference."

Pedro apparently is opposed to the idea that the bylaws should restrict the privileged treatment of GAC advice only when that advice is supported by the current definition of GAC consensus in Operating Principle 47, i.e. without formal objection. I may be wrong, but that is the impression I get from his insistence that in providing advice to the Board "each Advisory Committee has the right to determine its particular definition of consensus."

In sum, Pedro is proposing changes more radical than those that raised near unanimous opposition when the Board entertained it last year.

No thanks.

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/>

________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Olga Cavalli [olgacavalli@gmail.com] Sent: Thursday, November 12, 2015 9:39 PM To: Jorge.Cancio@bakom.admin.ch Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear Steve I agree with Jorge's comments. regards Olga

...

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:

Per Brett’s request for a recap:

GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

—Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Olga, As stated in my earlier email, currently the Board, if it decides not to follow GAC advice, it is obligated to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." In other words, the Board currently has to make a good faith effort or “try” to find a compromise solution, but if the effort is unfruitful, the Board’s decision is final. Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice." Pedro’s proposal would “require” or compel Board to find a compromise with the GAC. If that is not his intent, he should make clear that he misspoke and is not proposing any change to that language. Best, Brett From: Olga Cavalli [mailto:olgacavalli@gmail.com] Sent: Friday, November 13, 2015 8:22 AM To: Schaefer, Brett Cc: Pedro Ivo Ferraz da Silva; Jorge.Cancio@bakom.admin.ch; accountability-cross-community@icann.org Subject: Re: RES: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Brett, Plase be so kind to clarify to me this sentence: "but you seek to make it compulsory." What in Pedro´s text you find compulsory? Many thanks and regards Olga 2015-11-13 9:39 GMT-03:00 Schaefer, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>>: Pedro, With respect, you are engaging in word games. Nothing you say below changes any of my points. The Board may currently be committed to finding a mutually acceptable solution, but you seek to make it compulsory. You want to raise the rejection requirement to 2/3 of the Board. The rules on PDPs do not alter this fact. You are proposing a change from the status quo. You are unwilling to commit to the current rules on consensus in exchange for these changes. These points are all correct. Brett

Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097<tel:202-608-6097> heritage.org<http://heritage.org> ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> On Nov 13, 2015, at 2:59 AM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote:

Dear Bret,

With all due respect, many of the points you have raised below are simply not correct.

There is no intention whatsoever to change the standard or nature of the GAC advice given to the Board.

As I said previously to Keith, 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 of restrictive nature, i.e. it is not adding new elements, but rather referring to a current practice (Board engaged in finding a mutually accepted solution) that now would require consensus advice.

And, again, there are no radical changes being proposed. The suggested language does not only preserve the advisory nature of the GAC with regards to the ICANN Board, it actually restricts it by imposing the requirement of the advice having to be reached based on consensus. And as others have very wisely indicated, raising the rejection threshold to 2/3 makes it equivalent to the rejection threshold applied e.g. to PDPs, thus not changing at all the relative influence of the GAC advice in ICANN's decision-making system.

Finally, as a member of the GAC, Brazil supports all its Operating Principles, including OP 47. We also support the notion - which is implicit is this very OP and concurs with GAC's consensus position put forth in the ICANN 54 communiqué - that is up to the GAC itself to determine what the definition it will apply to its consensus based decisions.

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 Schaefer, Brett [Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>] Enviado: sexta-feira, 13 de novembro de 2015 1:32 Para: Olga Cavalli; Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

As I understand it, Pedro is proposing a significant expansion of GAC authority as compared to the status quo.

Currently, the Board, if it decides not to follow GAC advice, is required to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice."

Pedro is proposing raising the threshold for the Board to reject GAC advice from a simple majority to a two-thirds majority.

He is also proposing changing the standard from the "advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" into one where the Board must give GAC advice "due deference."

Pedro apparently is opposed to the idea that the bylaws should restrict the privileged treatment of GAC advice only when that advice is supported by the current definition of GAC consensus in Operating Principle 47, i.e. without formal objection. I may be wrong, but that is the impression I get from his insistence that in providing advice to the Board "each Advisory Committee has the right to determine its particular definition of consensus."

In sum, Pedro is proposing changes more radical than those that raised near unanimous opposition when the Board entertained it last year.

No thanks.

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097<tel:202-608-6097> heritage.org<http://heritage.org><http://heritage.org/>

________________________________________ From: 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>] on behalf of Olga Cavalli [olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>] Sent: Thursday, November 12, 2015 9:39 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear Steve I agree with Jorge's comments. regards Olga

...

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org><mailto:sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>>:

Per Brett’s request for a recap:

GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

—Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org><mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org><mailto:Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross-Community@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@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@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

All, a comment and a few questions: I believe that NTIA has been clear that the level of GAC consensus required to trigger Board obligations and engagement must not change, nor be subject to change. Without such language included in the bylaws to guarantee this, I believe the community proposal will not be accepted by NTIA. I think views to the contrary are mistaken and I'm worried that a miscalculation on this issue could put at risk everything we've worked to accomplish over the last 18 months. Speaking personally...I might be able to support the 2/3 threshold, and I could probably support the GAC as a co-equal in the community mechanism, but I believe strongly that any proposed change in the definition of GAC consensus that triggers Board obligations is a non-starter and a likely deal-killer. A few questions: -- Has the GAC reached consensus that it wants the 2/3 Board vote threshold for overriding GAC consensus advice? -- Has the GAC reached consensus that the Board's obligations regarding GAC consensus advice should be based on a new threshold that is weaker than "the absence of formal objection?" -- Has the GAC reached consensus that it will participate as "decisional" vs. "advisory" in the final step of the community mechanism? -- What level of GAC member support do the "alternative proposed by Brazil" and "concerns mentioned by colleagues" have? Thanks and regards, Keith

On Nov 12, 2015, at 11:39 PM, Olga Cavalli <olgacavalli@gmail.com> wrote:

Dear Steve I agree with Jorge's comments. regards Olga

...

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:

Per Brett’s request for a recap:

GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

—Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Dear Keith Let me try to provide some answers from my point of view: 1) GAC consensus input Dublin expressed support for 2/3 whenever there is GAC consensus advice 2) GAC committed to consensus, while stating that each AC needs flexibility. I feel there is sentiment in the GAC that that flexibility does not substantially change what is a very stringent level of consensus. GAC members have signalized willingness to give assurances to others on this 3) I think that the GAC will, as other AC/SO, give its position on participation in the escalation, when the third draft is on the table. For the moment the "opt-in" position agreed as a consensus input by the GAC to the second draft report public comment still stands, but it may evolve 4) I feel that BRazils proposal is their take on trying to implement the GAC Dublin consensus. It surely may be improved, along the lines commented before in relation to the other questions. It is work in progress for the ccwg during these days. Hope this helps Jorge -----Ursprüngliche Nachricht----- Von: Drazek, Keith [mailto:kdrazek@verisign.com] Gesendet: Freitag, 13. November 2015 04:34 An: Olga Cavalli <olgacavalli@gmail.com> Cc: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion All, a comment and a few questions: I believe that NTIA has been clear that the level of GAC consensus required to trigger Board obligations and engagement must not change, nor be subject to change. Without such language included in the bylaws to guarantee this, I believe the community proposal will not be accepted by NTIA. I think views to the contrary are mistaken and I'm worried that a miscalculation on this issue could put at risk everything we've worked to accomplish over the last 18 months. Speaking personally...I might be able to support the 2/3 threshold, and I could probably support the GAC as a co-equal in the community mechanism, but I believe strongly that any proposed change in the definition of GAC consensus that triggers Board obligations is a non-starter and a likely deal-killer. A few questions: -- Has the GAC reached consensus that it wants the 2/3 Board vote threshold for overriding GAC consensus advice? -- Has the GAC reached consensus that the Board's obligations regarding GAC consensus advice should be based on a new threshold that is weaker than "the absence of formal objection?" -- Has the GAC reached consensus that it will participate as "decisional" vs. "advisory" in the final step of the community mechanism? -- What level of GAC member support do the "alternative proposed by Brazil" and "concerns mentioned by colleagues" have? Thanks and regards, Keith

On Nov 12, 2015, at 11:39 PM, Olga Cavalli <olgacavalli@gmail.com> wrote:

Dear Steve I agree with Jorge's comments. regards Olga

...

El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:

Dear Steve

After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.

I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.

"see" you all in some hours

Jorge

Von meinem iPhone gesendet

Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:

Per Brett's request for a recap:

GAC's Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)

"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.

Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:

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.

I offered an alternative to avoid use of the term "due deference" since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee's advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

I feel we are very close, and could merge these two alternatives into one.

Second, Pedro added the GAC request to require "more than 2/3 board vote" to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC's advice.

As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, "the absence of any formal objection". Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice.

I believe that a new 2/3 rule would have to be balanced - by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC's present rule for decision-making, so this does not impose any change on the GAC.

Finally, we're interested to know the GAC's reaction to the rationale we provided for Stress Test 18 in Dublin. I've attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government 'capture' and removes the offending language (with my apologies, once again).

The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA- which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.

-Steve

From: <accountability-cross-community-bounces@icann.org<mailto:accountabili ty-cross-community-bounces@icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbr anchconsulting.com>> Cc: "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] Stress Test 18: bylaw amendment suggestion

Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.

<Stress Test 18 text for 3rd draft proposal[1].docx> _______________________________________________ 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Dear Steve I understand that on the call last night the CCWG determined to create an ST-18 Subgroup to work on a resolution. I would like to be part of that group. Thanks Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 12, 2015 7:14 PM To: Schaefer, Brett <Brett.Schaefer@heritage.org>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Per Brett’s request for a recap: GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text) "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: o The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; o The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; o The value the Board attributes to receiving consensus advice; o 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. Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs: 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. I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs. And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already. For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members. I feel we are very close, and could merge these two alternatives into one. Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice. That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice. As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”. Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments did not support the GAC advice. I believe that a new 2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC. Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again). The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition. —Steve From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of "Schaefer, Brett" <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> > Date: Thursday, November 12, 2015 at 6:09 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: "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] Stress Test 18: bylaw amendment suggestion Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.