Rationale for Stress Test 18
In GAC session today, some said they did not understand why we needed Stress Test 18. In case it has been lost in all the email traffic, I want to explain the rationale for the Stress Test and for the bylaws change. I am at your service to discuss any time that you like. Best, Steve Stress Test 18 was among the plausible scenarios that could test how and whether the ICANN community could challenge actions taken by the ICANN corporation. The rationale to develop this stress test involves two factors: First, ICANN community members were aware that some GAC members had expressed a desire to change the GAC’s historical method of using consensus for its decision-making, where “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection”. Moreover, it would take only a simple majority of GAC members to change its decision-making methods to a lesser standard, such as majority voting. Second, the CCWG realized that ICANN’s present bylaws obligate the board to seek “a mutually acceptable solution” if it decided not to follow GAC advice. That level of required deference is unique to the GAC and not required for advice from other AC and SOs. More important, the board’s obligation to seek a mutually acceptable solution applies to all GAC advice, even if that advice were not supported by GAC consensus, and even if that advice were opposed by a significant minority of GAC members. For these reasons, CCWG added Stress Test 18 to the draft proposal, and the stress test working party concluded that existing accountability measures were not adequate to let the community hold the ICANN board accountable for its actions if the board were obliged to seek a negotiated solution with the GAC. In order to address Stress Test 18, CCWG proposed an amendment to ICANN bylaws regarding the board’s obligations with respect to GAC advice. The amendment would preserve the requirement for ICANN’s board to seek a mutually acceptable solution, but only for GAC advice that was supported by consensus among GAC members. The rationale for proposing this bylaws amendment in response to Stress Test 18 is two-fold. First, CCWG wants to reserve ICANN’s board’s obligation to negotiate with the GAC for only that advice which is supported by a consensus of governments. GAC advice that is opposed by a significant minority of governments should not trigger the board’s obligation to enter bi-lateral negotiations with the GAC on a matter that affects the global Internet community. A negotiation between ICANN board and GAC should be reserved for resolving differences between ICANN and governments – not to resolve differences among governments themselves. Second, the proposed bylaws change would provide a strong incentive for the GAC to continue seeking consensus for the advice it provides to ICANN, which is the practice presently used by the GAC. While the GAC could at any time change its decision-making methods, this bylaws change would continue to elevate the influence of GAC advice that was supported by consensus of GAC members. Similar incentives for consensus policy and advice are already present in the ICANN bylaws, which require supermajority support for policy recommendations coming from GNSO and ccNSO. The rationale above is meant to explain why Stress Test 18 was developed, and to explain why CCWG proposes a bylaws amendment to preserve ICANN board’s obligation to seek a mutually acceptable solution when GAC advice is supported by consensus. — Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
On 10/17/15 9:51 AM, Steve DelBianco wrote:
In GAC session today, some said they did not understand why we needed Stress Test 18.
While January is quite a long time ago, even in ICANN process development time, at the time when the BC provided their scenarios to "Work Group #4" I wrote:
-- BC #6. GAC votes
The accountability issue here isn't obvious to me. The bylaws create several Advisory Councils, each of which may have distinct internal processes resulting in the issuance of advice. A change in any AC's internal process does not necessarily create an accountability issue.
I suggest this item should be discarded.
Here we are, still using our very finite time, on a scenario the better part of a year's aging has not improved. Eric Brunner-Williams Eugene, Oregon
Really? I would think the exact opposite. After a year of dilation and delay the GAC has failed to articulate why it is "just like" any other AC (such that its internal processes should be its own business) in the face of its Bylaw-privleged ability to command the Board to negotiate. As most of us have recognized, so long as the GAC has that privileged position and has the ability to compel Board consideration in a way that other ACs do not, its internal processes do, necessarily, create an accountability issue. That's something that the overwhelming majority of the community has recognized with only a few outliers. For myself, I would prefer to strip the GAC of its privileged position - in which case I would be content for them to use whatever process they want. But that, alas, does not command a broad consensus either. Cheers 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=articl e&id=19&Itemid=9> From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Saturday, October 17, 2015 1:42 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18 On 10/17/15 9:51 AM, Steve DelBianco wrote: In GAC session today, some said they did not understand why we needed Stress Test 18. While January is quite a long time ago, even in ICANN process development time, at the time when the BC provided their scenarios to "Work Group #4" I wrote: -- BC #6. GAC votes The accountability issue here isn't obvious to me. The bylaws create several Advisory Councils, each of which may have distinct internal processes resulting in the issuance of advice. A change in any AC's internal process does not necessarily create an accountability issue. I suggest this item should be discarded. Here we are, still using our very finite time, on a scenario the better part of a year's aging has not improved. Eric Brunner-Williams Eugene, Oregon
Dear Paul Respectfully, I do not feel you are stating facts as many of us in the GAC and other stakeholder groups see them, and as the Bylaws lay down. I want to remind you that when this ST 18 was first proposed, a year ago as you say, we were told it was meant to avoid "capture" of the Board by governments. We have been discussing about this in the working groups and trying to understand how an advisory body could capture a decision-making body by means of advice. The fact is that you and others always forget to mention in your arguments that the Board can turn down GAC advice by simple majority of its members. This is key! (Article XI-2-1-k of the Bylaws). Being true that the Board is obliged to enter into an engagement process with the GAC to try to find a mutually agreeable solution, never forget that if after this step there is no agreed solution, the Board can just reject GAC advice and move forward with their own decisión, by only providing a rationale to do so, and by simple majority of its members. So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue? In addition to this facts, only a couple of weeks ago, things have sort of changed, and we have been told that this not about capture anymore (Steve del Bianco), but still a requisite for the Transition that the NTIA has set. In this regard, I kindly ask you to explain how ST 18 relates to the 5 requirements set out in March 2014 by the NTIA, because I confess myself incapable of finding the match, once the "capture" rationale has dissapeared out of lack of substance. On the other hand, and talking about capture, let me re-state that we should avoid capture by any stakeholder. One could say that as 2/3 of the Board is required to reject a supermajority-approved PDP, the GNSO has actually much more power than the GAC. And let me end by re-iterating what I said in Paris. We are for consensus as the best means for the GAC to give advice to the Board. And we are absolutely against an expansion of governments role. But we are as well against having a hair cut because some would like to take advantage of the opportunity the Transition gives. Looking forward to finding a mutually agreeable solution, Rafael GAC_SPAIN ________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Sent: 17 October 2015 20:46 To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18 Really? I would think the exact opposite. After a year of dilation and delay the GAC has failed to articulate why it is “just like” any other AC (such that its internal processes should be its own business) in the face of its Bylaw-privleged ability to command the Board to negotiate. As most of us have recognized, so long as the GAC has that privileged position and has the ability to compel Board consideration in a way that other ACs do not, its internal processes do, necessarily, create an accountability issue. That’s something that the overwhelming majority of the community has recognized with only a few outliers. For myself, I would prefer to strip the GAC of its privileged position – in which case I would be content for them to use whatever process they want. But that, alas, does not command a broad consensus either. Cheers 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: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Saturday, October 17, 2015 1:42 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18 On 10/17/15 9:51 AM, Steve DelBianco wrote: In GAC session today, some said they did not understand why we needed Stress Test 18. While January is quite a long time ago, even in ICANN process development time, at the time when the BC provided their scenarios to "Work Group #4" I wrote: -- BC #6. GAC votes The accountability issue here isn't obvious to me. The bylaws create several Advisory Councils, each of which may have distinct internal processes resulting in the issuance of advice. A change in any AC's internal process does not necessarily create an accountability issue. I suggest this item should be discarded. Here we are, still using our very finite time, on a scenario the better part of a year's aging has not improved. Eric Brunner-Williams Eugene, Oregon
Thanks Rafael for your cooments. Argentina supports them. Best regards Olga 2015-10-18 6:03 GMT-03:00 Perez Galindo, Rafael <RPEREZGA@minetur.es>:
Dear Paul
Respectfully, I do not feel you are stating facts as many of us in the GAC and other stakeholder groups see them, and as the Bylaws lay down.
I want to remind you that when this ST 18 was first proposed, a year ago as you say, we were told it was meant to avoid "capture" of the Board by governments. We have been discussing about this in the working groups and trying to understand how an advisory body could capture a decision-making body by means of advice.
The fact is that you and others always forget to mention in your arguments that the Board can turn down GAC advice by simple majority of its members. This is key! (Article XI-2-1-k of the Bylaws).
Being true that the Board is obliged to enter into an engagement process with the GAC to try to find a mutually agreeable solution, never forget that if after this step there is no agreed solution, the Board can just reject GAC advice and move forward with their own decisión, by only providing a rationale to do so, and by simple majority of its members.
So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue?
In addition to this facts, only a couple of weeks ago, things have sort of changed, and we have been told that this not about capture anymore (Steve del Bianco), but still a requisite for the Transition that the NTIA has set. In this regard, I kindly ask you to explain how ST 18 relates to the 5 requirements set out in March 2014 by the NTIA, because I confess myself incapable of finding the match, once the "capture" rationale has dissapeared out of lack of substance.
On the other hand, and talking about capture, let me re-state that we should avoid capture by any stakeholder. One could say that as 2/3 of the Board is required to reject a supermajority-approved PDP, the GNSO has actually much more power than the GAC.
And let me end by re-iterating what I said in Paris. We are for consensus as the best means for the GAC to give advice to the Board. And we are absolutely against an expansion of governments role. But we are as well against having a hair cut because some would like to take advantage of the opportunity the Transition gives.
Looking forward to finding a mutually agreeable solution,
Rafael
GAC_SPAIN
________________________________________ From: accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org] on behalf of Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Sent: 17 October 2015 20:46 To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18
Really? I would think the exact opposite. After a year of dilation and delay the GAC has failed to articulate why it is “just like” any other AC (such that its internal processes should be its own business) in the face of its Bylaw-privleged ability to command the Board to negotiate. As most of us have recognized, so long as the GAC has that privileged position and has the ability to compel Board consideration in a way that other ACs do not, its internal processes do, necessarily, create an accountability issue. That’s something that the overwhelming majority of the community has recognized with only a few outliers.
For myself, I would prefer to strip the GAC of its privileged position – in which case I would be content for them to use whatever process they want. But that, alas, does not command a broad consensus either.
Cheers 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: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Saturday, October 17, 2015 1:42 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18
On 10/17/15 9:51 AM, Steve DelBianco wrote: In GAC session today, some said they did not understand why we needed Stress Test 18.
While January is quite a long time ago, even in ICANN process development time, at the time when the BC provided their scenarios to "Work Group #4" I wrote:
-- BC #6. GAC votes
The accountability issue here isn't obvious to me. The bylaws create several Advisory Councils, each of which may have distinct internal processes resulting in the issuance of advice. A change in any AC's internal process does not necessarily create an accountability issue.
I suggest this item should be discarded.
Here we are, still using our very finite time, on a scenario the better part of a year's aging has not improved.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, I tend to support this reasoning on the basis that each SOAC decides on its own method of making decsions. I also image that any board sitting at time when the GAC gave non consensus advice would that that fact into account in its considerations. Making this an issue seems to be a distraction and seems divisive. Except for the belief that NTIA and/or congress would not accept a proposal that did not include this. I question whether this is a belief in something true. Or something that should be true Or whether it just represents fear and doubt and that explaining the fact that GAC advice just gets extra special VIP care but its advice is not binding. Yes, the Board seems to snap to when the GAC gives advice, but it is not bound to do so and could learn to do otherwise if warranted. avri On 18-Oct-15 10:03, Perez Galindo, Rafael wrote:
Dear Paul
Respectfully, I do not feel you are stating facts as many of us in the GAC and other stakeholder groups see them, and as the Bylaws lay down.
I want to remind you that when this ST 18 was first proposed, a year ago as you say, we were told it was meant to avoid "capture" of the Board by governments. We have been discussing about this in the working groups and trying to understand how an advisory body could capture a decision-making body by means of advice.
The fact is that you and others always forget to mention in your arguments that the Board can turn down GAC advice by simple majority of its members. This is key! (Article XI-2-1-k of the Bylaws).
Being true that the Board is obliged to enter into an engagement process with the GAC to try to find a mutually agreeable solution, never forget that if after this step there is no agreed solution, the Board can just reject GAC advice and move forward with their own decisión, by only providing a rationale to do so, and by simple majority of its members.
So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue?
In addition to this facts, only a couple of weeks ago, things have sort of changed, and we have been told that this not about capture anymore (Steve del Bianco), but still a requisite for the Transition that the NTIA has set. In this regard, I kindly ask you to explain how ST 18 relates to the 5 requirements set out in March 2014 by the NTIA, because I confess myself incapable of finding the match, once the "capture" rationale has dissapeared out of lack of substance.
On the other hand, and talking about capture, let me re-state that we should avoid capture by any stakeholder. One could say that as 2/3 of the Board is required to reject a supermajority-approved PDP, the GNSO has actually much more power than the GAC.
And let me end by re-iterating what I said in Paris. We are for consensus as the best means for the GAC to give advice to the Board. And we are absolutely against an expansion of governments role. But we are as well against having a hair cut because some would like to take advantage of the opportunity the Transition gives.
Looking forward to finding a mutually agreeable solution,
Rafael
GAC_SPAIN
________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Sent: 17 October 2015 20:46 To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18
Really? I would think the exact opposite. After a year of dilation and delay the GAC has failed to articulate why it is “just like” any other AC (such that its internal processes should be its own business) in the face of its Bylaw-privleged ability to command the Board to negotiate. As most of us have recognized, so long as the GAC has that privileged position and has the ability to compel Board consideration in a way that other ACs do not, its internal processes do, necessarily, create an accountability issue. That’s something that the overwhelming majority of the community has recognized with only a few outliers.
For myself, I would prefer to strip the GAC of its privileged position – in which case I would be content for them to use whatever process they want. But that, alas, does not command a broad consensus either.
Cheers 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: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Saturday, October 17, 2015 1:42 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18
On 10/17/15 9:51 AM, Steve DelBianco wrote: In GAC session today, some said they did not understand why we needed Stress Test 18.
While January is quite a long time ago, even in ICANN process development time, at the time when the BC provided their scenarios to "Work Group #4" I wrote:
-- BC #6. GAC votes
The accountability issue here isn't obvious to me. The bylaws create several Advisory Councils, each of which may have distinct internal processes resulting in the issuance of advice. A change in any AC's internal process does not necessarily create an accountability issue.
I suggest this item should be discarded.
Here we are, still using our very finite time, on a scenario the better part of a year's aging has not improved.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Dear Rafael, dear all, I have two thoughts in relation to one question that you asked: On 18 October 2015 at 10:03, Perez Galindo, Rafael <RPEREZGA@minetur.es> wrote:
... So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue?
to me there are two accountability issues arising if the proposed bylaws change is not made: 1. The duty ICANN has to respond to GAC advice with an attempt to come to a "mutually acceptable solution" should not be able to be made broader by the unilateral decision of the GAC. Nobody is saying GAC should not choose GAC's own procedures --- just that ICANN shouldn't be obliged to respond to non-consensus advice in the same way. The accountability issue is that this would be a change to the relative level of influence of GAC inside the ICANN framework only by decision of the GAC. 2. If ICANN does have to come to "mutually acceptable solutions" then that implies it's mutual acceptance between two parties. In a context where there was GAC advice without consensus, there would be more than two parties. ICANN, some GAC members, and some other GAC members. For ICANN to come to a solution would involve ICANN making decisions between the interests of sovereigns. It is an accountability issue for the whole ICANN community for the ICANN Board's scope to be extended in such a way -- but a change to GAC operating principles allowing such non-consensus advice, should it occur, could be made just by GAC today, with no say for the rest. I don't think ICANN making decisions between conflicting sovereigns is a good idea. And I don't think any AC should be able to essentially expand the scope of its role on its own decision. Those are why I think there is an accountability problem if the bylaws change or some version that achieves the same thing (freedom for GAC to choose its advice and its decisions, but clear rules about when "mutually acceptable solutions" have to be found) does not happen. best Jordan
Dear Jordan you underpin your view on this presumption: "" If ICANN does have to come to "mutually acceptable solutions" then that implies it's mutual acceptance between two parties "" That is not what the Bylaws say. The Board is only obliged to engage to TRY to find a solution. The Board does NOT have to reach an agreeable solution, it only has to engage with the GAC. In that case, where a solution is not found, the Board CAN just SAY NO to the GAC, turning the GAC down by simple majority of its members, and just stick to the decision they originally made. In addition, I again draw your attention to the fact that in the case of the GNSO, the threshold for rejection of supermajority (not consensus!) policy is 2/3 of the Board. Best Rafa ________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Jordan Carter [jordan@internetnz.net.nz] Sent: 18 October 2015 14:33 To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18 Dear Rafael, dear all, I have two thoughts in relation to one question that you asked: On 18 October 2015 at 10:03, Perez Galindo, Rafael <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>> wrote: ... So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue? to me there are two accountability issues arising if the proposed bylaws change is not made: 1. The duty ICANN has to respond to GAC advice with an attempt to come to a "mutually acceptable solution" should not be able to be made broader by the unilateral decision of the GAC. Nobody is saying GAC should not choose GAC's own procedures --- just that ICANN shouldn't be obliged to respond to non-consensus advice in the same way. The accountability issue is that this would be a change to the relative level of influence of GAC inside the ICANN framework only by decision of the GAC. 2. If ICANN does have to come to "mutually acceptable solutions" then that implies it's mutual acceptance between two parties. In a context where there was GAC advice without consensus, there would be more than two parties. ICANN, some GAC members, and some other GAC members. For ICANN to come to a solution would involve ICANN making decisions between the interests of sovereigns. It is an accountability issue for the whole ICANN community for the ICANN Board's scope to be extended in such a way -- but a change to GAC operating principles allowing such non-consensus advice, should it occur, could be made just by GAC today, with no say for the rest. I don't think ICANN making decisions between conflicting sovereigns is a good idea. And I don't think any AC should be able to essentially expand the scope of its role on its own decision. Those are why I think there is an accountability problem if the bylaws change or some version that achieves the same thing (freedom for GAC to choose its advice and its decisions, but clear rules about when "mutually acceptable solutions" have to be found) does not happen. best Jordan
participants (7)
-
Avri Doria -
Eric Brunner-Williams -
Jordan Carter -
Olga Cavalli -
Paul Rosenzweig -
Perez Galindo, Rafael -
Steve DelBianco