... or, should it stay in the ST-WP, where all this has been done so far? [my preference would be in ST-WP] J On 10 November 2015 at 07:09, Jordan Carter <jordan@internetnz.net.nz> wrote:

All - do we need a WP1 call to discuss this? We could squeeze one in and have it ready for debate at CCWG on Friday?

Jordan

On 10 November 2015 at 03:48, Steve DelBianco <sdelbianco@netchoice.org> wrote:

...

Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from *all* Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

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.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s 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).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards, Steve

From: <accountability-cross-community-bounces@icann.org> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Date: Monday, November 9, 2015 at 11:28 AM To: "accountability-cross-community@icann.org" < 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Jordan Carter

Chief Executive *InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz

*A better world through a better Internet *

-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

I share Phil's concerns and position on this issue. Thanks, Robin On Nov 9, 2015, at 11:11 AM, Phil Corwin wrote:

With respect to the suggestion for a Bylaws amendment that initiated this thread, it should IMHO be rejected.

The current language of Article XI.2 of the Bylaws relating to GAC advice states: 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. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.(Emphasis added)

My understanding is that the Board’s informal practice is to require a 2/3 majority for rejection of GAC consensus advice. But when it recently proposed to formalize that practice via a Bylaws amendment there was substantial negative community feedback, the Board reversed course, and there has been no indication of a change in community views since then.

The proposed amendment has two operative clauses: 1. “In this context, each Advisory Committee has the right to determine its particular definition of consensus.” This merely makes explicit what is already implicit in the text of proposed ST 18, which is that it does not define the meaning of GAC “consensus”. In either case the GAC is free to alter its definition of consensus in the future from its present practice of finding consensus only when there is non-objection. In my opinion, it is almost inevitable that a divisive issue will arise in the future that serves as a predicate for such definitional change (e.g., consensus exists when 2/3 of GAC members support proposed advice) and that will place the ICANN Board in the unenviable position of having to choose between blocs of governments with opposing viewpoints, as well as irretrievably alter the GAC’s internal politics and its role within ICANN. 2. “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.” This proposal is even more objectionable, as it would transform the status of the GAC “consensus” output from advice that must be given reasonable consideration by the Board, and obligates the Board to seek to negotiate a “mutually acceptable solution”, to a presumptive dictate that must be followed unless rejected by 2/3 or more of the Board. It would also transform the Board-GAC relationship into one that is potentially far more confrontational than the current collaborative arrangement.

The NTIA has made clear that ST 18 is an essential element of the CCWG proposal, and US Congressional staff who spoke at ICANN 54 in Dublin delivered the same bipartisan message.

As discussed above, the proposed text of ST 18 does not block the GAC from altering its internal definition of consensus -- the revised text just circulated by Steve states in relevant part: “The GAC currently uses the following consensus rule for its decisions: “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.” The proposed bylaws change above recognizes that GAC may, at its discretion, amend its Operating Principle 47 regarding “Provision of Advice to the ICANN Board.” “

The role of the GAC in relation to post-transition ICANN remains uncertain in other ways. It presently appears that it will be left to the GAC’s own discretion as to whether it will exercise a vote on the use of community powers, and the GAC could readily trade its decision to vote or not, and whether to vote for or object, with the Board or other internal ICANN constituencies. Indeed, it could leverage that discretion to influence Board disposition of its advice.

Overall, there is some considerable irony that the third iteration Designator model has the community foregoing many of the statutory powers accorded under California public benefit corporation law, while simultaneously according the GAC substantially more potential influence on ICANN policy matters than it enjoys at present.

Regards, Philip

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, November 09, 2015 1:10 PM To: Steve DelBianco; wp1@icann.org Cc: accountability-cross-community@icann.org Subject: Re: [WP1] [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

... or, should it stay in the ST-WP, where all this has been done so far?

[my preference would be in ST-WP]

J

On 10 November 2015 at 07:09, Jordan Carter <jordan@internetnz.net.nz> wrote: All - do we need a WP1 call to discuss this? We could squeeze one in and have it ready for debate at CCWG on Friday?

Jordan

On 10 November 2015 at 03:48, Steve DelBianco <sdelbianco@netchoice.org> wrote: Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

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.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s 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).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards, Steve

From: <accountability-cross-community-bounces@icann.org> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Date: Monday, November 9, 2015 at 11:28 AM To: "accountability-cross-community@icann.org" <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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Jordan Carter

Chief Executive InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz

A better world through a better Internet

-- Jordan Carter

Chief Executive InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz

A better world through a better Internet

No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1

Steve, Your previous e-mail also had this caveat: “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.” I believe that this is very important and should not be forgotten. Best, 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<http://heritage.org/> From: wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Monday, November 09, 2015 2:42 PM To: Jordan Carter; wp1@icann.org Cc: accountability-cross-community@icann.org Subject: Re: [WP1] [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Either Stress Test or WP1, Jordan. But either way we start, this should go to the full full CCWG and get an official GAC view. To set this up, our 1st and 2nd draft reports responded to ST18 by adding "With respect to Governmental Advisory Committee advice that is supported by consensus” in front of the exiting bylaws Article XI Section 2j "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. “ We now have two alternative texts to replace the above change, with a paragraph in Article XI that would apply to board obligations to deal with advice from ANY advisory committee: Pedro: 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. Mine: 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. In addition, Pedro suggests requiring a change to bylaws Article XI Section 2j regarding how the board must deal with GAC 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. From: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: Monday, November 9, 2015 at 3:10 PM ... or, should it stay in the ST-WP, where all this has been done so far? [my preference would be in ST-WP] On 10 November 2015 at 03:48, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: Thank-you Pedro for picking-up this discussion after Dublin. Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC? 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. Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s 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). Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there. Best regards, Steve 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: Monday, November 9, 2015 at 11:28 AM 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<tel:%2B55%2061%202030-6609> _______________________________________________ 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 -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118<tel:%2B64-4-495-2118> (office) | +64-21-442-649<tel:%2B64-21-442-649> (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet

Dear Paul the rationale provided that the Board should not be put in a position where it would need to arbitrage between majorities and minorities is of a general nature. That is why singling specifically out the GAC is a sign perceived by many as distrust. For this reason the debates in the GAC showed that a horizontal approach would be preferable. As to the differences in ACs: I agree that each one has a different role. Each very important in its own merit. But they are all just advisory under the bylaws - that is a common feature, which draws a line of difference to the SOs. Hope this is helpful best Jorge Von meinem iPhone gesendet Am 09.11.2015 um 18:15 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>: A quick question Jorge. You write: “I feel it was also considered important, within the GAC, to spell this principle in horizontal terms, applicable to all advisory committees in such a situation, and not to single out the GAC as this could be perceived as a sign of mistrust.” Surely, though, you (and the members of the GAC) are not really saying that you stand in the same relationship to ICANN and/or the citizens of the world as the SSAC or the RSSAC or even the ALAC? I fully agree that like should be treated alike – but the degree of power, influence, authority and capacity of the GAC members outside of the ICANN context is so fundamentally different from the other ACs that the difference in capabilities should be reflected in a difference in treatment. It isn’t a sign of “mistrust” I think, so much as a reflection of the reality that the governments present in the GAC are very much different entities than the individuals and institutions represented on, say, the SSAC. Just the fact that they are all “advisory committees” by itself isn’t really saying that much. Is there something more to your view than this facial equivalence? Regards 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: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, November 9, 2015 2:51 PM To: sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>; pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro, dear Steve, dear all, First of all, let me thank Pedro for trying to „operationalize“ the elements of what was a consensus GAC input from the GAC agreed upon in Dublin. I would like to share some thoughts with all of you which were important elements of the discussion within the GAC and which perhaps may help to forge a common understanding of the ccwg on this very delicate issue. First, there may be some degree of understanding that we want to avoid placing the ICANN Board in a position where it would be obliged to arbitrate between divergent views or interests of parts of an advisory committee, which in the case of the GAC would be sovereign governments. This thought could be considered as a relevant element in supporting an express mention of the consensus support requirement, whenever the Board has to enter into a mutually accepted procedure with an advisory committee. I feel it was also considered important, within the GAC, to spell this principle in horizontal terms, applicable to all advisory committees in such a situation, and not to single out the GAC as this could be perceived as a sign of mistrust. On the other hand, it was also considered as important that provision should be made that Advisory Committees should retain a certain degree of autonomy in establishing their particular definition of consensus. As we know, there is no “one size fits all” definition of consensus and some flexibility must be provided to adapt to the different circumstances and characteristics of each Advisory Committee. In any case, I feel it is understood that whatever specific definition of consensus is adopted, majority voting is ruled out by definition to mean “consensus”. At the same time, we also know that consensus does not mean unanimity and should not be construed as allowing a single or absolutely negligible minority within an Advisory Committee to recklessly block a consensus advice as this would amount to a risk of capture of the named Advisory Committee, and would prevent it from properly exercising its advisory role. In what specifically affects the GAC, and mindful of the ATRT2 report and the recommendations of the Board-GAC Recommendation Implementation Working Group, the GAC also discussed and agreed to consider it as another important element in the equation, that a 2/3 majority vote would need to be required from the Board to turn down a consensus GAC advice on public policy matters. In my view, this would guarantee a thoughtful consideration by the Board of public policy advice supported by GAC consensus within the new framework, bearing in mind that the special historical role of the US on these matters will be missing, and advice from the GAC in my opinion amounts or should amount to a significant element of the multistakeholder model. In addition, this would place the GAC in equal terms with proposals submitted by GNSO and ccNSO supported by supermajorities in those supporting organizations. I hope these personal thoughts are helpful for progressing in this very delicate discussion Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Steve DelBianco Gesendet: Montag, 9. November 2015 15:49 An: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thank-you Pedro for picking-up this discussion after Dublin. Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC? 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. Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s 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). Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there. Best regards, Steve 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: Monday, November 9, 2015 at 11:28 AM 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

There are several differences between the GAC and the SOs. Advisory Committees render advice as the name implies. And ACs have a defined area and a defined role. SOs have a different role, but still restrict themselves on policy development only pertaining to their area, with involvement of the other SO/ACs. So Phil is right. And as long as the GAC thinks it can issue policy advice on anything including who to give a gTLD to, and requiring supermajority of the Board to unbind, this can not be allowed to happen. Though I agree that other AC's in particular the ALAC must be given even less weight. el -- Sent from Dr Lisse's iPad mini

On 10 Nov 2015, at 01:23, Phil Corwin <psc@vlaw-dc.com> wrote:

The GAC has been “singled out” in these accountability discussions because it is the only AC whose (consensus) advice, under the current Bylaws, is required to be given any special consideration by the Board in a quest for a “mutually acceptable solution”. That is not based on any mistrust of the GAC but on the reality that the Bylaws already makes that distinction, which in turn is a recognition that governments have a special role and responsibilities in regard to public policy matters.

As for the rationale that the proposed Bylaws amendment “would place the GAC in equal terms with proposals submitted by GNSO and ccNSO supported by supermajorities in those supporting organizations”, Board consideration of GNSO recommendations is governed by Section 9 of Annex A of the Bylaws (“Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN. If the GNSO Council recommendation was approved by less than a GNSO Supermajority Vote, a majority vote of the Board will be sufficient to determine that such policy is not in the best interests of the ICANN community or ICANN.”, with additional provisions regarding a process to reach agreement if possible ) and of ccNSO recommendations by Section 15 of Annex B (“The Board shall adopt the ccNSO Recommendation unless by a vote of more than 66% the Board determines that such policy is not in the best interest of the ICANN community or of ICANN”, with similar additional provisions).

However, the notion that the GAC should be placed on “equal terms” with these two supporting organizations proposes a fundamental transformation of its role within ICANN, and would elevate it from an entity that renders policy advice to one that prescribes policy. I do not support such a transformation of its role, I strongly question whether a significant portion much less a majority of the CCWG supports such a fundamental change, and I believe that its adoption would likely make it impossible for the NTIA or US Congress to go along with any accountability proposal that contained it.

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, November 09, 2015 4:15 PM To: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org; pedro.ivo@itamaraty.gov.br; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

A quick question Jorge. You write: “I feel it was also considered important, within the GAC, to spell this principle in horizontal terms, applicable to all advisory committees in such a situation, and not to single out the GAC as this could be perceived as a sign of mistrust.”

Surely, though, you (and the members of the GAC) are not really saying that you stand in the same relationship to ICANN and/or the citizens of the world as the SSAC or the RSSAC or even the ALAC? I fully agree that like should be treated alike – but the degree of power, influence, authority and capacity of the GAC members outside of the ICANN context is so fundamentally different from the other ACs that the difference in capabilities should be reflected in a difference in treatment. It isn’t a sign of “mistrust” I think, so much as a reflection of the reality that the governments present in the GAC are very much different entities than the individuals and institutions represented on, say, the SSAC. Just the fact that they are all “advisory committees” by itself isn’t really saying that much. Is there something more to your view than this facial equivalence?

Regards Paul

Paul Rosenzweig paul.rosenzweig@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

From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Monday, November 9, 2015 2:51 PM To: sdelbianco@netchoice.org; pedro.ivo@itamaraty.gov.br; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear Pedro, dear Steve, dear all,

First of all, let me thank Pedro for trying to „operationalize“ the elements of what was a consensus GAC input from the GAC agreed upon in Dublin.

I would like to share some thoughts with all of you which were important elements of the discussion within the GAC and which perhaps may help to forge a common understanding of the ccwg on this very delicate issue.

First, there may be some degree of understanding that we want to avoid placing the ICANN Board in a position where it would be obliged to arbitrate between divergent views or interests of parts of an advisory committee, which in the case of the GAC would be sovereign governments. This thought could be considered as a relevant element in supporting an express mention of the consensus support requirement, whenever the Board has to enter into a mutually accepted procedure with an advisory committee.

I feel it was also considered important, within the GAC, to spell this principle in horizontal terms, applicable to all advisory committees in such a situation, and not to single out the GAC as this could be perceived as a sign of mistrust.

On the other hand, it was also considered as important that provision should be made that Advisory Committees should retain a certain degree of autonomy in establishing their particular definition of consensus. As we know, there is no “one size fits all” definition of consensus and some flexibility must be provided to adapt to the different circumstances and characteristics of each Advisory Committee. In any case, I feel it is understood that whatever specific definition of consensus is adopted, majority voting is ruled out by definition to mean “consensus”.

At the same time, we also know that consensus does not mean unanimity and should not be construed as allowing a single or absolutely negligible minority within an Advisory Committee to recklessly block a consensus advice as this would amount to a risk of capture of the named Advisory Committee, and would prevent it from properly exercising its advisory role.

In what specifically affects the GAC, and mindful of the ATRT2 report and the recommendations of the Board-GAC Recommendation Implementation Working Group, the GAC also discussed and agreed to consider it as another important element in the equation, that a 2/3 majority vote would need to be required from the Board to turn down a consensus GAC advice on public policy matters.

In my view, this would guarantee a thoughtful consideration by the Board of public policy advice supported by GAC consensus within the new framework, bearing in mind that the special historical role of the US on these matters will be missing, and advice from the GAC in my opinion amounts or should amount to a significant element of the multistakeholder model.

In addition, this would place the GAC in equal terms with proposals submitted by GNSO and ccNSO supported by supermajorities in those supporting organizations.

I hope these personal thoughts are helpful for progressing in this very delicate discussion

Best regards

Jorge

Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Steve DelBianco Gesendet: Montag, 9. November 2015 15:49 An: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

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.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s 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).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards, Steve

From: <accountability-cross-community-bounces@icann.org> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Date: Monday, November 9, 2015 at 11:28 AM To: "accountability-cross-community@icann.org" <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

No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community