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
Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:
The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;
The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;
The value the Board attributes to receiving consensus advice;
The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold
for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.
In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.
ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”
ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
Kind regards,
Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree fully with Phil and Keith. This would be a significant expansion of the current role and influence of the GAC that, along with the possibility of GAC participation in the sole designator, should raise significant concerns in the community, NTIA and Congress. ________________________________ 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 [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Monday, November 09, 2015 3:29 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... <http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis...> I expect any change on this point might raise some serious and difficult questions.
The 2/3 proposal has also been subject to ICANN public comments: https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en <https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en> The comments didn't favor the idea, and the board decided not to follow it, and informed the GAC: http://domainincite.com/18052-icann-ditches-plan-to-give-governments-more-po... <http://domainincite.com/18052-icann-ditches-plan-to-give-governments-more-po...> So besides US political establishment, it seems the community didn't like it either. I reckon this time is possibly the moment referred by the Board chair to revisit the idea in a larger context, but it seems the community reaction hasn't changed. Rubens
Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GACs agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to win the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig <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=articl e&id=19&Itemid=9> Link to my PGP Key From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural advisory committees it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro _____ De: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GACs position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG; 2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural advisory committees it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was off the table. Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so its off the table. Senator Fischer followed up and said, Its off the table, and Fadi again said: Its off the table. This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis takeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> > wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: * The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; * The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; * The value the Board attributes to receiving consensus advice; * The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate. Seems appropriate to me. As someone says the Board does most thing based on unanimity anyway. avri On 10-Nov-15 14:58, Paul Rosenzweig wrote:
I am sure that many governments think that a 2/3^rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
*From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "/has the right to determine its particular definition of consensus". / It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "/Any //PDP// Recommendations approved by a //GNSO// Supermajority Vote shall be adopted by the Board unless, by a vote o_f *more than two-thirds (2/3)*_ of the Board, the Board determines that such policy is not in the best interests of the //ICANN// community or //ICANN//.//"/
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "/Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice/" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro
------------------------------------------------------------------------
*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"/The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: /
· /The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; /
· /The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; /
· /The value the Board attributes to receiving consensus advice; /
· /The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold /
/for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations./
/In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability./"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*_underlined_*) in ICANN bylaws.
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 1. GENERAL/*
/“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board./
*/_Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus._/*/_” _/
/ /
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 2. SPECIFIC ADVISORY COMMITTEES/*
*/Item 1.j/*
/“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. *_Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board._* The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”/
Kind regards,
Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Yes, indeed. And if the board does not reject the advice, but wants to follow it up, the community (if sufficiently aligned) can stop the board. Best, Roelof On 10-11-15 19:10, "accountability-cross-community-bounces@icann.org on behalf of Avri Doria" <accountability-cross-community-bounces@icann.org on behalf of avri@acm.org> wrote:
Hi,
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Seems appropriate to me. As someone says the Board does most thing based on unanimity anyway.
avri
On 10-Nov-15 14:58, Paul Rosenzweig wrote:
I am sure that many governments think that a 2/3^rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC¹s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to ³win² the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key
<http://www.redbranchconsulting.com/index.php?option=com_content&view=art icle&id=19&Itemid=9>
*From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "/has the right to determine its particular definition of consensus". / It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "/Any //PDP// Recommendations approved by a //GNSO// Supermajority Vote shall be adopted by the Board unless, by a vote o_f *more than two-thirds (2/3)*_ of the Board, the Board determines that such policy is not in the best interests of the //ICANN// community or //ICANN//.//"/
By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "/Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice/" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro
------------------------------------------------------------------------
*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC¹s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG;
2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was ³off the table.² Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, ³That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it¹s off the table.² Senator Fischer followed up and said, ³It¹s off the table,² and Fadi again said: ³It¹s off the table.² This started on the video at the 1:12:50 mark (on the counter on the right)
http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-mul tistakeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"/The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: /
· /The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; /
· /The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; /
· /The value the Board attributes to receiving consensus advice; /
· /The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold /
/for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations./
/In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability./"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*_underlined_*) in ICANN bylaws.
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 1. GENERAL/*
/³The 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._/*/_² _/
/ /
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 2. SPECIFIC ADVISORY COMMITTEES/*
*/Item 1.j/*
/³The 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.²/
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
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At a practical level, the problem with 2/3 is this: 1. The idea of GAC advice being submitted based on something less than consensus is hypothetical, and may be extremely unlikely ever to occur, so the strong likelihood is that the Board will only ever review GAC consensus advice for the foreseeable future. So, we've prevented a fairly far-fetched scenario (the Board forced to review non-consensus advice by the same standards as consensus advice) at the cost of agreeing to something that will absolutely happen every time GAC advice is reviewed (a vote requiring a 2/3 majority). 2. Since the GAC has broad discretion to redefine "consensus," as they should (and they could even adopt the oxymoron "majority consensus," which we have apparently coined in the Executive Summary), our preventive language is extremely weak and easy to work around. 3. It was rejected by the community once, and very little has actually changed since then, protestations to the contrary notwithstanding. 4. Making GAC advice harder to reject was not in any way the goal of the CCWG, and a 2/3 majority clearly makes it harder to reject 5. Making GAC advice harder to reject increases the power of governments in the ICANN process, which runs contrary to the NTIA's base requirements which form a part of our mandate (I will not indulge in speculation regarding NTIA or Congressional reactions, it's enough to say that it is contrary to the terms). 6. The "consensus view" language in the general text is at odds with the reference to "GAC consensus" unless it is made clear that "GAC consensus" must always reflect the consensus view of the committee. 7. I haven't seen a substantive reason why we should the 2/3 majority, other than that it's the price for peace. Greg On Thu, Nov 12, 2015 at 1:07 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Yes, indeed. And if the board does not reject the advice, but wants to follow it up, the community (if sufficiently aligned) can stop the board.
Best,
Roelof
On 10-11-15 19:10, "accountability-cross-community-bounces@icann.org on behalf of Avri Doria" <accountability-cross-community-bounces@icann.org on behalf of avri@acm.org> wrote:
Hi,
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Seems appropriate to me. As someone says the Board does most thing based on unanimity anyway.
avri
On 10-Nov-15 14:58, Paul Rosenzweig wrote:
I am sure that many governments think that a 2/3^rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC¹s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to ³win² the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key
<
http://www.redbranchconsulting.com/index.php?option=com_content&view=art
icle&id=19&Itemid=9>
*From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "/has the right to determine its particular definition of consensus". / It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "/Any //PDP// Recommendations approved by a //GNSO// Supermajority Vote shall be adopted by the Board unless, by a vote o_f *more than two-thirds (2/3)*_ of the Board, the Board determines that such policy is not in the best interests of the //ICANN// community or //ICANN//.//"/
By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "/Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice/" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro
------------------------------------------------------------------------
*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC¹s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG;
2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was ³off the table.² Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, ³That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it¹s off the table.² Senator Fischer followed up and said, ³It¹s off the table,² and Fadi again said: ³It¹s off the table.² This started on the video at the 1:12:50 mark (on the counter on the right)
http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-mul
tistakeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"/The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: /
· /The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; /
· /The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; /
· /The value the Board attributes to receiving consensus advice; /
· /The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold /
/for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations./
/In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability./"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*_underlined_*) in ICANN bylaws.
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 1. GENERAL/*
/³The 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._/*/_² _/
/ /
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 2. SPECIFIC ADVISORY COMMITTEES/*
*/Item 1.j/*
/³The 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.²/
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
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+1 To which I would add (to finally answer Olga’s question) that if this is the price of peace the price is too high. If the GAC will not accept the CCWG report because of this, I’d prefer a report without GAC agreement to one that enhances GAC authority. 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: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Thursday, November 12, 2015 2:59 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: Avri Doria <avri@acm.org>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion At a practical level, the problem with 2/3 is this: 1. The idea of GAC advice being submitted based on something less than consensus is hypothetical, and may be extremely unlikely ever to occur, so the strong likelihood is that the Board will only ever review GAC consensus advice for the foreseeable future. So, we've prevented a fairly far-fetched scenario (the Board forced to review non-consensus advice by the same standards as consensus advice) at the cost of agreeing to something that will absolutely happen every time GAC advice is reviewed (a vote requiring a 2/3 majority). 2. Since the GAC has broad discretion to redefine "consensus," as they should (and they could even adopt the oxymoron "majority consensus," which we have apparently coined in the Executive Summary), our preventive language is extremely weak and easy to work around. 3. It was rejected by the community once, and very little has actually changed since then, protestations to the contrary notwithstanding. 4. Making GAC advice harder to reject was not in any way the goal of the CCWG, and a 2/3 majority clearly makes it harder to reject 5. Making GAC advice harder to reject increases the power of governments in the ICANN process, which runs contrary to the NTIA's base requirements which form a part of our mandate (I will not indulge in speculation regarding NTIA or Congressional reactions, it's enough to say that it is contrary to the terms). 6. The "consensus view" language in the general text is at odds with the reference to "GAC consensus" unless it is made clear that "GAC consensus" must always reflect the consensus view of the committee. 7. I haven't seen a substantive reason why we should the 2/3 majority, other than that it's the price for peace. Greg On Thu, Nov 12, 2015 at 1:07 PM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl> > wrote:
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Yes, indeed. And if the board does not reject the advice, but wants to follow it up, the community (if sufficiently aligned) can stop the board. Best, Roelof On 10-11-15 19:10, "accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Avri Doria" <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of avri@acm.org <mailto:avri@acm.org> > wrote:
Hi,
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Seems appropriate to me. As someone says the Board does most thing based on unanimity anyway.
avri
On 10-Nov-15 14:58, Paul Rosenzweig wrote:
I am sure that many governments think that a 2/3^rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC¹s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to ³win² the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> >
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
Skype: paul.rosenzweig1066
Link to my PGP Key
<http://www.redbranchconsulting.com/index.php?option=com_content <http://www.redbranchconsulting.com/index.php?option=com_content&view=art> &view=art icle&id=19&Itemid=9>
*From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> ] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "/has the right to determine its particular definition of consensus". / It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "/Any //PDP// Recommendations approved by a //GNSO// Supermajority Vote shall be adopted by the Board unless, by a vote o_f *more than two-thirds (2/3)*_ of the Board, the Board determines that such policy is not in the best interests of the //ICANN// community or //ICANN//.//"/
By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "/Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice/" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro
------------------------------------------------------------------------
*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > [accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] em nome de Drazek, Keith [kdrazek@verisign.com <mailto:kdrazek@verisign.com> ] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC¹s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG;
2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was ³off the table.² Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, ³That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it¹s off the table.² Senator Fischer followed up and said, ³It¹s off the table,² and Fadi again said: ³It¹s off the table.² This started on the video at the 1:12:50 mark (on the counter on the right)
http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-mul tistakeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> <mailto:pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> >> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"/The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: /
· /The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; /
· /The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; /
· /The value the Board attributes to receiving consensus advice; /
· /The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold /
/for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations./
/In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability./"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*_underlined_*) in ICANN bylaws.
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 1. GENERAL/*
/³The 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._/*/_² _/
/ /
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 2. SPECIFIC ADVISORY COMMITTEES/*
*/Item 1.j/*
/³The 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.²/
Kind regards,
Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609
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Someone ones said to me, that if people make a list of points, arguments, pro’s, con’s, etc., they often make a list of 7. Since then, I have been paying attention to this. And very often, it’s true… See inline below, Greg Cheers, Roelof From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: donderdag 12 november 2015 16:58 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Cc: Avri Doria <avri@acm.org<mailto:avri@acm.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion At a practical level, the problem with 2/3 is this: 1. The idea of GAC advice being submitted based on something less than consensus is hypothetical, and may be extremely unlikely ever to occur, so the strong likelihood is that the Board will only ever review GAC consensus advice for the foreseeable future. So, we've prevented a fairly far-fetched scenario (the Board forced to review non-consensus advice by the same standards as consensus advice) at the cost of agreeing to something that will absolutely happen every time GAC advice is reviewed (a vote requiring a 2/3 majority). You state that as a problem, I do not agree 2. Since the GAC has broad discretion to redefine "consensus," as they should (and they could even adopt the oxymoron "majority consensus," which we have apparently coined in the Executive Summary), our preventive language is extremely weak and easy to work around. See your own point 1. Again, I argue, it’s your opinion, not a fact. And my opinion is different. The maneuvering room is limited. If the advice is not based on the common understanding of “consensus”, the board and community can (and should if it is bad advice) reject it. Check the Dublin GAC Communique on this. And what exactly would the GAC (or any other AC for that matter) do? The rejection of the advice would be supported by the community (ex GAC) and a minority of the GAC. Together, that’s some powerful support. By the way: it can be good advice too.. 3. It was rejected by the community once, and very little has actually changed since then, protestations to the contrary notwithstanding. I submit that the stewardship transition and the enhancement of ICANN’s accountability are the largest changes in the history of ICANN. In my opinion, learning from the past is good, but just copy-pasting the past into the future is a bad idea 4. Making GAC advice harder to reject was not in any way the goal of the CCWG, and a 2/3 majority clearly makes it harder to reject I think that’s your 1 and 2 again, I think (the second bit, that is) 5. Making GAC advice harder to reject increases the power of governments in the ICANN process, which runs contrary to the NTIA's base requirements which form a part of our mandate (I will not indulge in speculation regarding NTIA or Congressional reactions, it's enough to say that it is contrary to the terms). See my comment on your point 2 6. The "consensus view" language in the general text is at odds with the reference to "GAC consensus" unless it is made clear that "GAC consensus" must always reflect the consensus view of the committee. Agree, that’s something GAC members themselves commented upon, to be fixed. BUT: what (exacly) is consensus and how it should be reached, is for the individual SO and AC to decide 7. I haven't seen a substantive reason why we should the 2/3 majority, other than that it's the price for peace. History shows that huge prizes have been paid for peace. This is peanuts, in my opinion. My previous email has some arguments too Best, Roelof Greg On Thu, Nov 12, 2015 at 1:07 PM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote:
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Yes, indeed. And if the board does not reject the advice, but wants to follow it up, the community (if sufficiently aligned) can stop the board. Best, Roelof On 10-11-15 19:10, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Avri Doria" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
I do not understand why 2/3 is not appropriate? What is most important is that the board can reject their advice and that it learn how to do when that is appropriate.
Seems appropriate to me. As someone says the Board does most thing based on unanimity anyway.
avri
On 10-Nov-15 14:58, Paul Rosenzweig wrote:
I am sure that many governments think that a 2/3^rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC¹s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to ³win² the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweigesq@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com>>
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*From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "/has the right to determine its particular definition of consensus". / It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "/Any //PDP// Recommendations approved by a //GNSO// Supermajority Vote shall be adopted by the Board unless, by a vote o_f *more than two-thirds (2/3)*_ of the Board, the Board determines that such policy is not in the best interests of the //ICANN// community or //ICANN//.//"/
By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "/Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice/" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro
------------------------------------------------------------------------
*De:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC¹s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG;
2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural ³advisory committees² it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was ³off the table.² Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, ³That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it¹s off the table.² Senator Fischer followed up and said, ³It¹s off the table,² and Fadi again said: ³It¹s off the table.² This started on the video at the 1:12:50 mark (on the counter on the right)
http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-mul tistakeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br> <mailto:pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"/The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: /
· /The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; /
· /The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; /
· /The value the Board attributes to receiving consensus advice; /
· /The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold /
/for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations./
/In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability./"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*_underlined_*) in ICANN bylaws.
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 1. GENERAL/*
/³The 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._/*/_² _/
/ /
/ARTICLE XI: ADVISORY COMMITTEES/
*/Section 2. SPECIFIC ADVISORY COMMITTEES/*
*/Item 1.j/*
/³The 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.²/
Kind regards,
Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609
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Dear Paul, could you please clarify to me this paragraph: "Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago" English is my second language and I have limitations. Best regards Olga 2015-11-10 14:58 GMT-03:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
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*From:* Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "*has the right to determine its particular definition of consensus". * It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "*Any **PDP** Recommendations approved by a **GNSO** Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the **ICANN** community or **ICANN**.**"*
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "*Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice*" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro ------------------------------
*De:* accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"*The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: *
· *The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; *
· *The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; *
· *The value the Board attributes to receiving consensus advice; *
· *The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold *
*for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.*
*In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability.*"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments ( *underlined*) in ICANN bylaws.
*ARTICLE XI: ADVISORY COMMITTEES*
*Section 1. GENERAL*
*“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.*
*Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.**” *
*ARTICLE XI: ADVISORY COMMITTEES*
*Section 2. SPECIFIC ADVISORY COMMITTEES*
*Item 1.j*
*“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”*
Kind regards,
Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org 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 Olga You are too humble. Your English is excellent. Usted entiende Inglés mucho mejor que yo entiendo español. Estoy seguro de que sabes lo que quiero decir. :) 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: Olga Cavalli [mailto:olgacavalli@gmail.com] Sent: Tuesday, November 10, 2015 8:34 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; Drazek, Keith <kdrazek@verisign.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Paul, could you please clarify to me this paragraph: "Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago" English is my second language and I have limitations. Best regards Olga 2015-11-10 14:58 GMT-03:00 Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >: I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> ] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro _____ De: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] em nome de Drazek, Keith [kdrazek@verisign.com <mailto:kdrazek@verisign.com> ] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> > wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: * The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; * The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; * The value the Board attributes to receiving consensus advice; * The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 <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 _______________________________________________ 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
Gracias Paul! But you did not clarify your paragraph to me, so: "it is time for the community to recognize that it may have to proceed without the GAC’s agreement": what does "without GAC´s agreement" means for you? And why should the community recognize that this? and: "it is time for the GAC to recognize that this forum is not the place where it is going to “win”": win what? I will welcome any clarification that you can give me, in the spirit of a open multistakeholder dialogue. Regards form Joao Pessoa Olga 2015-11-11 10:08 GMT-03:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
Dear Olga
You are too humble. Your English is excellent. Usted entiende Inglés mucho mejor que yo entiendo español. Estoy seguro de que sabes lo que quiero decir. J
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <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:* Olga Cavalli [mailto:olgacavalli@gmail.com] *Sent:* Tuesday, November 10, 2015 8:34 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Cc:* Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; Drazek, Keith <kdrazek@verisign.com>; Accountability Cross Community < accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Paul,
could you please clarify to me this paragraph:
"Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago"
English is my second language and I have limitations.
Best regards
Olga
2015-11-10 14:58 GMT-03:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
*From:* Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] *Sent:* Tuesday, November 10, 2015 8:22 AM *To:* Drazek, Keith <kdrazek@verisign.com>; accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "*has the right to determine its particular definition of consensus". * It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "*Any **PDP** Recommendations approved by a **GNSO** Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the **ICANN** community or **ICANN**.**"*
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "*Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice*" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro ------------------------------
*De:* accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org] em nome de Drazek, Keith [kdrazek@verisign.com] *Enviado:* segunda-feira, 9 de novembro de 2015 18:29 *Para:* accountability-cross-community@icann.org *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, November 09, 2015 2:55 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro
Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard
Regards
Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"*The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: *
· *The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; *
· *The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; *
· *The value the Board attributes to receiving consensus advice; *
· *The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold *
*for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.*
*In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability.*"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments ( *underlined*) in ICANN bylaws.
*ARTICLE XI: ADVISORY COMMITTEES*
*Section 1. GENERAL*
*“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.*
*Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.**” *
*ARTICLE XI: ADVISORY COMMITTEES*
*Section 2. SPECIFIC ADVISORY COMMITTEES*
*Item 1.j*
*“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”*
Kind regards,
Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org 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
Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Roelof: The Noncommercial Stakeholders Group (NCSG) in its comments on the last round said that it opposed including the GAC in the community enforcement mechanism. And we provided many good reasons for that position. By including them in the SD mechanism, the current proposal seems to be "ignoring the position of a major stakeholder group." Can you answer two questions for me? 1. Do you not consider NCSG a major stakeholder group? 2. Do you think it is OK to ignore our position? Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Thursday, November 12, 2015 1:05 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br>; 'Drazek, Keith' <kdrazek@verisign.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, "proceeding with the GAC's agreement" might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC's agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to "win" the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus - a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural "advisory committees" it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC's position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus - a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural "advisory committees" it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was "off the table." Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, "That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it's off the table." Senator Fischer followed up and said, "It's off the table," and Fadi again said: "It's off the table." This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL "The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus." ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j "The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Since we are asking questions of Roelof here are two more: 1) All the other SOs create policy through a consensus based system. As Mark noted, he would approve the GAC position only if it irrevocably committed to the same sort of process. The GAC has not why? 2) None of the other SOs and ACs have a bylaw that requires the Board to give their views special consideration and make an effort to negotiate to a mutually acceptable solution. Will the GAC give up this special bylaw? If not why not? And if not, why should we hold them equivalent to other SOs? 3) The US Government opposed this very proposal in Paris in July and in Istanbul in March. On what basis do you think the NTIA will accept this now? 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=articl e&id=19&Itemid=9> Link to my PGP Key From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Thursday, November 12, 2015 2:39 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Roelof: The Noncommercial Stakeholders Group (NCSG) in its comments on the last round said that it opposed including the GAC in the community enforcement mechanism. And we provided many good reasons for that position. By including them in the SD mechanism, the current proposal seems to be ignoring the position of a major stakeholder group. Can you answer two questions for me? 1. Do you not consider NCSG a major stakeholder group? 2. Do you think it is OK to ignore our position? Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Thursday, November 12, 2015 1:05 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >; 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> >; 'Drazek, Keith' <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, proceeding with the GACs agreement might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GACs agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to win the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig <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=articl e&id=19&Itemid=9> Link to my PGP Key From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating
Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural advisory committees it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro _____ De:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] em nome de Drazek, Keith [kdrazek@verisign.com <mailto:kdrazek@verisign.com> ] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GACs position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus a major change from GAC Operating Principle 47 and not the focus of the CCWG; 2. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 3. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural advisory committees it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was off the table. Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so its off the table. Senator Fischer followed up and said, Its off the table, and Fadi again said: Its off the table. This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis takeholder-model-of-internet-governance I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br> > wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear all Please consider the GAC consensus input of Dublin carefully. It commits to consensus. If there are concerns on how to capture that commitment, let's adress them. The GNSO and CCNSO have more than equivalent special reconciliation procedures in case of Board rejection. Perhaps staff may provide an overvoew with the Bylaws texts. NTIA was part of the Dublin GAC consensus input. best Jorge Von meinem iPhone gesendet Am 12.11.2015 um 17:28 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>: Since we are asking questions of Roelof here are two more: 1) All the other SOs create policy through a consensus based system. As Mark noted, he would approve the GAC position only if it irrevocably committed to the same sort of process. The GAC has not – why? 2) None of the other SOs and ACs have a bylaw that requires the Board to give their views special consideration and make an effort to negotiate to a mutually acceptable solution. Will the GAC give up this special bylaw? If not why not? And if not, why should we hold them equivalent to other SOs? 3) The US Government opposed this very proposal in Paris in July and in Istanbul in March. On what basis do you think the NTIA will accept this now? 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: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Thursday, November 12, 2015 2:39 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Roelof: The Noncommercial Stakeholders Group (NCSG) in its comments on the last round said that it opposed including the GAC in the community enforcement mechanism. And we provided many good reasons for that position. By including them in the SD mechanism, the current proposal seems to be “ignoring the position of a major stakeholder group.” Can you answer two questions for me? 1. Do you not consider NCSG a major stakeholder group? 2. Do you think it is OK to ignore our position? Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Thursday, November 12, 2015 1:05 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>; 'Drazek, Keith' <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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
Ad I was finally succeeding in bringing the numbers “unread” down… See below, Paul Groet, Roelof From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: donderdag 12 november 2015 17:05 To: "'Mueller, Milton L'" <milton@gatech.edu<mailto:milton@gatech.edu>>, Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Since we are asking questions of Roelof here are two more: 1) All the other SOs create policy through a consensus based system. As Mark noted, he would approve the GAC position only if it irrevocably committed to the same sort of process. The GAC has not – why? I do not think I understand. Pedro “et al" propose to have what the SO’s have. But I cannot answer questions for the GAC 2) None of the other SOs and ACs have a bylaw that requires the Board to give their views special consideration and make an effort to negotiate to a mutually acceptable solution. Will the GAC give up this special bylaw? If not why not? And if not, why should we hold them equivalent to other SOs? Paul, again, I am sorry, but you cannot expect me to answer questions for the GAC. I could speculate, but we have enough proof that leads to nothing useful (and not only if I speculate) 3) The US Government opposed this very proposal in Paris in July and in Istanbul in March. On what basis do you think the NTIA will accept this now? What I know, is that the US supported the Dublin GAC communique. What I think (but it might be wishful thinking) is, that we would probably have heard publicly from the US if they did not. But think it through: there’s no public disagreement from GAC members so far. For the CCWG a good reason to incorporate the proposal. It shows that we are receptive and are trying to come to a solution. If in the end, the GAC would not by consensus support this and does not come up with a consensus based alternative, we can rightfully argue that we have done our very best but that it is now up to the CCWG/the (rest of) community Roelof 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: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Thursday, November 12, 2015 2:39 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Roelof: The Noncommercial Stakeholders Group (NCSG) in its comments on the last round said that it opposed including the GAC in the community enforcement mechanism. And we provided many good reasons for that position. By including them in the SD mechanism, the current proposal seems to be “ignoring the position of a major stakeholder group.” Can you answer two questions for me? 1. Do you not consider NCSG a major stakeholder group? 2. Do you think it is OK to ignore our position? Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Thursday, November 12, 2015 1:05 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>; 'Drazek, Keith' <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Milton, See below Best, Roelof From: "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Date: donderdag 12 november 2015 16:38 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Roelof: The Noncommercial Stakeholders Group (NCSG) in its comments on the last round said that it opposed including the GAC in the community enforcement mechanism. And we provided many good reasons for that position. By including them in the SD mechanism, the current proposal seems to be “ignoring the position of a major stakeholder group.” Can you answer two questions for me? 1. Do you not consider NCSG a major stakeholder group? On the contrary, I do consider the NCSG as a stakeholder group 2. Do you think it is OK to ignore our position? No I don’t and I don’t. But to me, the multistakeholdermodel does not mean that ALL stakeholders ALWAYS get ALL their wishes fulfilled. Would be nice, but does not work. Which the GAC realized, so they shifted. Nice to haves, should haves, must haves… Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Thursday, November 12, 2015 1:05 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>; 'Drazek, Keith' <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
1. Do you think it is OK to ignore our position? No I don't and I don't. But to me, the multistakeholdermodel does not mean that ALL stakeholders ALWAYS get ALL their wishes fulfilled. Would be nice, but does not work. Which the GAC realized, so they shifted. Nice to haves, should haves, must haves... Roelof: It's odd that you are saying that to me. Have you said it to your GAC friends? Yes, indeed, no one gets all that they want. That applies to GAC as well as to any other stakeholder, doesn't it? I don't think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged "advice" without having the assent of all governments. This is just playing a word game, not changing its position. The consensus requirement is not a nice to have or a should have, it is a must have - not only for us (NCSG) but for the transition as a whole. Any deviation from that will kill the transition in the U.S. Congress. There is no doubt about this. NCSG has shown a willingness to adjust its position on AC participation in the community mechanism. The GAC must face reality and adjust its position too, or be left behind. If the GAC is left behind because of its inconsistency and intransigence, it will be no use whining that we are ignoring "a major stakeholder group" - they are ignoring the consensus. If they are going to be in the community mechanism as part of the sole designator, they must have real consensus behind their advice.
Milton let's stick to the facts in this discussion. You claim that "I don’t think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged “advice” without having the assent of all governments. This is just playing a word game, not changing its position." Please show me where it is indicated in any of the GAC discussions, communiques, exchanges that GAC definition of consensus should be limited. I for one have never seen it and this is not what stress test 18 language says. Further, it would be most unusual for GAC members to want to call majority "consensus". What makes you think that all the governments participating in GAC would wish to do that even if they could? Sent from my iPhone. Please excuse any typing errors
On 13 Nov 2015, at 00:06, Mueller, Milton L <milton@gatech.edu> wrote:
I don’t think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged “advice” without having the assent of all governments. This is just playing a word game, not changing its position.
Dear Milton As I commented before to another email: the GAC has committed to consensus. If there is need for clearer assurances that when we say consensus we really mean it, I feel nobody in the GAC will be against to finding the right wording that makes that clear. Best Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Freitag, 13. November 2015 03:48 An: Roelof Meijer <Roelof.Meijer@sidn.nl>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion 1. Do you think it is OK to ignore our position? No I don't and I don't. But to me, the multistakeholdermodel does not mean that ALL stakeholders ALWAYS get ALL their wishes fulfilled. Would be nice, but does not work. Which the GAC realized, so they shifted. Nice to haves, should haves, must haves... Roelof: It's odd that you are saying that to me. Have you said it to your GAC friends? Yes, indeed, no one gets all that they want. That applies to GAC as well as to any other stakeholder, doesn't it? I don't think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged "advice" without having the assent of all governments. This is just playing a word game, not changing its position. The consensus requirement is not a nice to have or a should have, it is a must have - not only for us (NCSG) but for the transition as a whole. Any deviation from that will kill the transition in the U.S. Congress. There is no doubt about this. NCSG has shown a willingness to adjust its position on AC participation in the community mechanism. The GAC must face reality and adjust its position too, or be left behind. If the GAC is left behind because of its inconsistency and intransigence, it will be no use whining that we are ignoring "a major stakeholder group" - they are ignoring the consensus. If they are going to be in the community mechanism as part of the sole designator, they must have real consensus behind their advice.
Megan and Jorge: The communique says that it is committed to consensus, yes, but it also says that GAC can change the definition of consensus. If you have no intention or desire to change the definition of consensus, then we will all have any easy time coming to an agreement, because we can put the GAC's current operational definition of it into the fundamental bylaws. That is what I, and most others, would consider a "clearer assurance that when we say consensus we really mean it." So I welcome Jorge's willingness to make such an assurance. On the other hand if you are not willing to allow the current definition to go into the bylaws, then I am afraid we are just playing word games with the term "consensus." As I commented before to another email: the GAC has committed to consensus. If there is need for clearer assurances that when we say consensus we really mean it, I feel nobody in the GAC will be against to finding the right wording that makes that clear.
Dear Milton there is absolute willingness as I sense it, but a minimal degree of flexibility is needed in order to avoid capture by single members or very tiny minorities in the future. We may try to seek appropriate wording which strikes the right balance. thanks for your constructive spirit :-) Jorge Von meinem iPhone gesendet Am 13.11.2015 um 07:00 schrieb Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: Megan and Jorge: The communique says that it is committed to consensus, yes, but it also says that GAC can change the definition of consensus. If you have no intention or desire to change the definition of consensus, then we will all have any easy time coming to an agreement, because we can put the GAC’s current operational definition of it into the fundamental bylaws. That is what I, and most others, would consider a “clearer assurance that when we say consensus we really mean it.” So I welcome Jorge’s willingness to make such an assurance. On the other hand if you are not willing to allow the current definition to go into the bylaws, then I am afraid we are just playing word games with the term “consensus.” As I commented before to another email: the GAC has committed to consensus. If there is need for clearer assurances that when we say consensus we really mean it, I feel nobody in the GAC will be against to finding the right wording that makes that clear.
Dear Milton, Thanks for your civilized and constructive response. However, I get the impression that not considering the GAC as an enemy to you means that I now have GAC friends. I have friends everywhere (and enemies some might argue), but that is not relevant at all here. So just to make sure: I consider governments to be important stakeholders. That's it. There's another point were we seem to miscommunicate. Contrary to what you think, we do not disagree on "The consensus requirement is not a nice to have or a should have, it is a must have " You might want to re-read my email. Open-minded. Warm regards, Roelof Meijer From: "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Date: donderdag 12 november 2015 23:48 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion 1. Do you think it is OK to ignore our position? No I don't and I don't. But to me, the multistakeholdermodel does not mean that ALL stakeholders ALWAYS get ALL their wishes fulfilled. Would be nice, but does not work. Which the GAC realized, so they shifted. Nice to haves, should haves, must haves... Roelof: It's odd that you are saying that to me. Have you said it to your GAC friends? Yes, indeed, no one gets all that they want. That applies to GAC as well as to any other stakeholder, doesn't it? I don't think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged "advice" without having the assent of all governments. This is just playing a word game, not changing its position. The consensus requirement is not a nice to have or a should have, it is a must have - not only for us (NCSG) but for the transition as a whole. Any deviation from that will kill the transition in the U.S. Congress. There is no doubt about this. NCSG has shown a willingness to adjust its position on AC participation in the community mechanism. The GAC must face reality and adjust its position too, or be left behind. If the GAC is left behind because of its inconsistency and intransigence, it will be no use whining that we are ignoring "a major stakeholder group" - they are ignoring the consensus. If they are going to be in the community mechanism as part of the sole designator, they must have real consensus behind their advice.
Fair enough Roelof. But if you agree it is a "must have" what is your definition of that consensus? Mine is the current one in the GAC OPs. Do you have a different one in mind? 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=articl e&id=19&Itemid=9> Link to my PGP Key From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, November 13, 2015 1:01 PM To: Mueller, Milton L <milton@gatech.edu>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Milton, Thanks for your civilized and constructive response. However, I get the impression that not considering the GAC as an enemy to you means that I now have GAC friends. I have friends everywhere (and enemies some might argue), but that is not relevant at all here. So just to make sure: I consider governments to be important stakeholders. That's it. There's another point were we seem to miscommunicate. Contrary to what you think, we do not disagree on "The consensus requirement is not a nice to have or a should have, it is a must have " You might want to re-read my email. Open-minded. Warm regards, Roelof Meijer From: "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu> > Date: donderdag 12 november 2015 23:48 To: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl> >, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion 1. Do you think it is OK to ignore our position? No I don't and I don't. But to me, the multistakeholdermodel does not mean that ALL stakeholders ALWAYS get ALL their wishes fulfilled. Would be nice, but does not work. Which the GAC realized, so they shifted. Nice to haves, should haves, must haves. Roelof: It's odd that you are saying that to me. Have you said it to your GAC friends? Yes, indeed, no one gets all that they want. That applies to GAC as well as to any other stakeholder, doesn't it? I don't think you are correct that the GAC has shifted its position. If it can redefine consensus to move away from true consensus (no objection) to some kind of a majority, it is still trying to retain the potential to offer by-law privileged "advice" without having the assent of all governments. This is just playing a word game, not changing its position. The consensus requirement is not a nice to have or a should have, it is a must have - not only for us (NCSG) but for the transition as a whole. Any deviation from that will kill the transition in the U.S. Congress. There is no doubt about this. NCSG has shown a willingness to adjust its position on AC participation in the community mechanism. The GAC must face reality and adjust its position too, or be left behind. If the GAC is left behind because of its inconsistency and intransigence, it will be no use whining that we are ignoring "a major stakeholder group" - they are ignoring the consensus. If they are going to be in the community mechanism as part of the sole designator, they must have real consensus behind their advice.
Totally agree with Roelof. On 12/11/15 18:04, Roelof Meijer wrote:
Paul,
With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war.
Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible
Best,
Roelof Meijer
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Dear Keith,
Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there.
Regards,
Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal.
The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position.
Under the proposed language for Art. XI, Section 2, Item 1.j:
1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and
1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt.
Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions.
Accordingly, I support the earlier responses from Steve and Phil.
Regards, Keith
From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss
Sent from my iPhone
On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:
· The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;
· The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;
· The value the Board attributes to receiving consensus advice;
· The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold
for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.
In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.
ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”
ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
Kind regards,
Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609
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Oops, not a Freudian mistake, though it might look like one. Last sentence should read: "In that case, “proceeding withOUT the GAC’s agreement” might very well be impossible" Groet, Roelof From: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: donderdag 12 november 2015 15:05 To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Paul, With all due respect, I think that is an unconstructive comment. And unthoughtful too. Ignoring the position of a major stakeholder group (because we do not like what they say), is throwing away the whole MS model. And I have no doubts at all about who will then win the resulting tug-of-war. Moreover, quite a few commenters on this subject have before (repeatedly) referred to the NTIA and/or US Senate not agreeing to the transition without this stress test being dealt with in the CCWG's proposal. Without public statement of the contrary, should we not assume that the US can accept what Pedro proposes? In that case, “proceeding with the GAC’s agreement” might very well be impossible Best, Roelof Meijer From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: dinsdag 10 november 2015 14:58 To: 'Pedro Ivo Ferraz da Silva' <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion I am sure that many governments think that a 2/3rd rejection threshold is appropriate for GAC advice. Almost nobody else does. Perhaps it is time for the community to recognize that it may have to proceed without the GAC’s agreement. Or perhaps it is time for the GAC to recognize that this forum is not the place where it is going to “win” the result that the Board and community already rejected less than a year ago. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 10, 2015 8:22 AM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Keith, Thank you for your comments. Here my responses:
The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG;
The proposed bylaw amendment indicates that any AC "has the right to determine its particular definition of consensus". It is simply an expression of the principle that each stakeholder group should have the autonomy to determine its own working method, in this case how it reaches consensus. I don't see this as a "major change" nor that it would contradict Operating Principle 47. Quite the contrary: it reinforces the notion that the "operating principles" (or similar dispositions) is the appropriate place where consensus should be defined.
The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice;
During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. Hence, in suggesting that the given threshold be placed on equal terms with others - thereby following a recommendation that emanated from the BGRI WG-, there is by no means the intention to grant the GAC excepcional powers in relation to other SO/ACs. It is rather an intent to equalize the threshold to what has been "longstanding bylaw practice" with regards to SOs. I understand that the nature and scope of GAC advices is not the same as of the PDPs, but I fail to see why a lower rejection barrier needs to be applied to advices that concern such an essential issue as public policies.
The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change.
The use of "more than two-thirds" is also present in the language related to GNSO PDP recommendation (Annex A, Section 9): "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN."
By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose.
This is not what is written in the suggestion. The sentence "Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice" is restrictive and clearly means that it applies only to the case where "finding mutually agreed solution" is necessary. Hence, it is by no means extending existing prerogatives or powers to ACs for which this requirement isn't there. Regards, Pedro ________________________________ De:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Drazek, Keith [kdrazek@verisign.com<mailto:kdrazek@verisign.com>] Enviado: segunda-feira, 9 de novembro de 2015 18:29 Para: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I have to respectfully disagree with this proposal. The proposed language constitutes substantial changes to the role and influence of the GAC, far exceeding what the CCWG is charged with doing -- coming up with reasonable accountability checks on a post-transition ICANN and not materially recasting the GAC’s position in the community. The intent of ST-18, as part of the accountability discussion, is the preservation of the role and relative influence of governments within ICANN through a clear obligation for the board to give special deference to GAC advice only when there is no formal governmental objection to such advice. This proposal appears to do the opposite by materially recasting the GAC's position. Under the proposed language for Art. XI, Section 2, Item 1.j: 1. The ICANN board would have to engage to find mutually acceptable alternatives to rejected advice no matter how GAC determines its own level of consensus – a major change from GAC Operating Principle 47 and not the focus of the CCWG; 1. The board could no longer reject GAC advice by majority vote, another significant change from current, longstanding bylaw practice; and 1. The board could only reject such advice by a vote of MORE than two-thirds, a supermajority threshold above and beyond even a two-thirds threshold, which itself would constitute a major bylaw change. In addition, the proposed language regarding Art. XI, Section 1 would substantially enlarge by clear implication the role of all other ACs. By use of the plural “advisory committees” it implies that the board will be required to engage all ACs in looking for mutually agreed solutions to rejected advice and ACs can determine consensus in any manner they choose. This is far beyond anything the CCWG has discussed. I believe the proposed text from Steve would give the GAC its desired change here, without implying that ICANN must seek a mutually acceptable solution on any Advisory Committee advice it declines to adopt. Also, importantly, Fadi told the U.S. Congress in February 2015 that any move to require a 2/3 Board majority to reject GAC advice was “off the table.” Senator Fischer asked Fadi directly about a proposal to require a 2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent with the stated goals. The board has looked at that matter and has pushed it back so it’s off the table.” Senator Fischer followed up and said, “It’s off the table,” and Fadi again said: “It’s off the table.” This started on the video at the 1:12:50 mark (on the counter on the right) http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis... I expect any change on this point might raise some serious and difficult questions. Accordingly, I support the earlier responses from Steve and Phil. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, November 09, 2015 2:55 PM To: Pedro Ivo Ferraz da Silva Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear Pedro Yes but the GAC should implement the last part of that consensus text,i.e. To modify ST 18 as soon as possible and submit that to CCWG during the 30 days public comments. The GAC Chair nerds to take immediate action in that regard Regards Kavouss Sent from my iPhone On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: · The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; · The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; · The value the Board attributes to receiving consensus advice; · The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Gee whizz, trust us we are the government... el -- Sent from Dr Lisse's iPad mini
On 10 Nov 2015, at 15:21, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:
[...] During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. [...]
Helmut Schmidt, who died today, is being quoted, though I haven't been able to find the source, as: "The stupidity of governments should not be underestimated." el -- Sent from Dr Lisse's iPad mini
On 10 Nov 2015, at 22:35, Dr Eberhard W Lisse <el@lisse.na> wrote:
Gee whizz,
trust us we are the government...
el -- Sent from Dr Lisse's iPad mini
On 10 Nov 2015, at 15:21, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:
[...] During GAC discussions in Dublin many governments felt that preserving the advice rejection threshold as simple majority - in opposition to the two thirds threshold required to reject e.g. GNSO PDP recommendations - would represent mistrust towards the GAC. [...]
Many thanks Pedro. This proposal seems to reflect well the discussions in GAC and offers a solid base for a solution. Sent from my iPhone. Please excuse any typing errors On 09 Nov 2015, at 11:31, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: * The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; * The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; * The value the Board attributes to receiving consensus advice; * The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello, Thanks for the intervention, it may be helpful if this can be discussed within GAC and some level of support (formal) statement from GAC is provided. The GAC statement in Dublin indicated they will continue to discuss about stress test 18, will be good to know if there is an outcome of that yet and if what Pedro has proposed in indeed such outcome. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 9 Nov 2015 15:29, "Pedro Ivo Ferraz da Silva" <pedro.ivo@itamaraty.gov.br> wrote:
Dear CCWG colleagues,
As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:
"*The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: *
-
*The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; * -
*The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; * -
*The value the Board attributes to receiving consensus advice; * -
*The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold *
*for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.*
*In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability.*"
With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (*underlined*) in ICANN bylaws.
*ARTICLE XI: ADVISORY COMMITTEES* *Section 1. GENERAL* *“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.* *Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.**” *
*ARTICLE XI: ADVISORY COMMITTEES* *Section 2. SPECIFIC ADVISORY COMMITTEES* *Item 1.j* *“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. **Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board.* *The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”*
Kind regards,
Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609
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Dear Pedro Let me thank you for this very constructive proposal, which in my view reflects very well the GAC consensus podition agreed upon in Dublin. I would like to urge colleagues to carefully consider this proposal, which already amounts to a significant compromise for some of us, and look into its merits. I feel that discussions could quickly progress on this very sensitive issue if the consensus elements agreed by the GAC are duly considered. Regards Rafael GAC_Spain Sent from a mobile device. Please excuse any typos. -------- Original message -------- From: Pedro Ivo Ferraz da Silva Date:09/11/2015 12:31 (GMT-02:00) To: 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
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- *the very advice the Board has decided not to follow*, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org> wrote:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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From a CCWG perspective:
Does this GAC wish (for the lack of a better word) need to be in place in order for the transition to occur? No! Does this GAC wish need to be in place after the transition? No! So, can't we find a way to leave the GAC's position as it is and move on? the GAC can pursue whatever it wishes to pursue outside of the CCWG. el On 2015-11-11 09:04, Greg Shatan wrote:
At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain.
As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- _the very advice the Board has decided not to follow_, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board).
Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing.
I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting.
Greg
On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
> 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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Dear Greg I hope the points I just made on Avri's question may help to clarify that aspect. As to your email I wonder whether you could elaborate why you think the change to a 2/3 threshhold to reject AC consensus advice would change the underlying role of that AC. I feel that, to the contrary, the AC, in our case the GAC, would retain its current underlying role: to provide advice on certain issues as defined in the Bylaws. The change from 50+1 to 2/3 does not change that advisory role. It just would require a 16,6% more of Board members to reject a consensus advice. regards Jorge Von meinem iPhone gesendet Am 11.11.2015 um 04:05 schrieb Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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
Dear Greg, Avri, Thanks for your comments. I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here. I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw". The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object. With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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
Hello Pedro Please see in-line On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote:
Dear Greg, Avri,
Thanks for your comments.
I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here.
I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw".
The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object.
With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system.
With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014? https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment. Many thanks for clarifying. Matthew
Regards,
Pedro
------------------------------------------------------------------------ *De:* accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] *Enviado:* quarta-feira, 11 de novembro de 2015 5:04 *Para:* Avri Doria *Cc:* accountability-cross-community@icann.org *Assunto:* Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain.
As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- _the very advice the Board has decided not to follow_, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board).
Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing.
I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting.
Greg
On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
> 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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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If I may chime in: the context is very different now. We are now considering (as a result of a ccwg proposal) to embed a "consensus" requirement into the bylaws. That element was not there in 2014. Neither was the transition and the discussion on accountability. The GAC Dublin consensus input to the CCWG reacts and contributed to the delicate discussion on st17, where all this was raised. And as a part of that input, the GAC considered that -with the new consensus requirement- also moving to 2/3 would be sensible. hope this helps Jorge Von meinem iPhone gesendet Am 11.11.2015 um 11:17 schrieb Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>: Hello Pedro Please see in-line On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote: Dear Greg, Avri, Thanks for your comments. I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here. I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw". The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object. With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system. With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014? https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment. Many thanks for clarifying. Matthew Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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 -- Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology mshears@cdt.org<mailto:mshears@cdt.org> + 44 771 247 2987 ________________________________ [Avast logo] <https://www.avast.com/antivirus> This email has been checked for viruses by Avast antivirus software. www.avast.com<https://www.avast.com/antivirus> _______________________________________________ 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
Jorge, I don't understand why the same concerns that the rest of the community expressed when GAC proposed this last year are not still relevant. If anything, the change of the transition and giving GAC decision making power (under the guise of the word "consensus"), makes those widespread concerns EVEN GREATER - it doesn't eviscerate those concerns, only makes them more concerning. Robin On Nov 11, 2015, at 6:23 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
If I may chime in: the context is very different now. We are now considering (as a result of a ccwg proposal) to embed a "consensus" requirement into the bylaws. That element was not there in 2014. Neither was the transition and the discussion on accountability. The GAC Dublin consensus input to the CCWG reacts and contributed to the delicate discussion on st17, where all this was raised. And as a part of that input, the GAC considered that -with the new consensus requirement- also moving to 2/3 would be sensible.
hope this helps
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 11:17 schrieb Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>:
Hello Pedro
Please see in-line
On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote: Dear Greg, Avri,
Thanks for your comments.
I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here.
I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw".
The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object.
With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system.
With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014?
https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en
If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment.
Many thanks for clarifying.
Matthew
Regards,
Pedro
________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain.
As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board).
Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing.
I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting.
Greg
On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Dear Robin I'm not saying that concerns are not relevant. Perhaps I did not express myself correctly. I only pointed to the fact that st18 has given rise to a very long and delicate discussion, which creates a new environment. Within this new environment, the GAC consensus input considered that while it is willing to commit to embedding the consensus principle within the Bylaws (which is something new), it also considers that in such cases the 2/3 threshold would be sensible. I feel we are here to talk about concerns, the reasons for such concerns, and reach a good consensus on this issue which has emerged from the works of this ccwg. Regards Jorge -----Ursprüngliche Nachricht----- Von: Robin Gross [mailto:robin@ipjustice.org] Gesendet: Mittwoch, 11. November 2015 15:44 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: Matthew Shears <mshears@cdt.org>; Accountability Community <accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Jorge, I don't understand why the same concerns that the rest of the community expressed when GAC proposed this last year are not still relevant. If anything, the change of the transition and giving GAC decision making power (under the guise of the word "consensus"), makes those widespread concerns EVEN GREATER - it doesn't eviscerate those concerns, only makes them more concerning. Robin On Nov 11, 2015, at 6:23 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
If I may chime in: the context is very different now. We are now considering (as a result of a ccwg proposal) to embed a "consensus" requirement into the bylaws. That element was not there in 2014. Neither was the transition and the discussion on accountability. The GAC Dublin consensus input to the CCWG reacts and contributed to the delicate discussion on st17, where all this was raised. And as a part of that input, the GAC considered that -with the new consensus requirement- also moving to 2/3 would be sensible.
hope this helps
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 11:17 schrieb Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>:
Hello Pedro
Please see in-line
On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote: Dear Greg, Avri,
Thanks for your comments.
I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here.
I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw".
The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object.
With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system.
With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014?
https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08- 15-en
If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment.
Many thanks for clarifying.
Matthew
Regards,
Pedro
________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability -cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org<mailto:accountabilit y-cross-community-bounces@icann.org>] em nome de Greg Shatan [gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org<mailto:accountability-cross-c ommunity@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain.
As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board).
Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing.
I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting.
Greg
On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Matthew You are completely correct. The suggestion to change the threshold for the Board's response to GAC advice was proposed by the Board as a Bylaw amendment and generally condemned by the community --- so much so that the Board withdrew the proposal and the CEO then promised the Senate that the suggestion was "off the table." In Washington, we have a phrase to describe this tactic: "There are no permanent defeats only temporary setbacks." It reflects the decision of a politician to revive a previously rejected proposal in the hopes of achieving a different result in a different forum or at a different time. Cheers 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=articl e&id=19&Itemid=9> Link to my PGP Key From: Matthew Shears [mailto:mshears@cdt.org] Sent: Wednesday, November 11, 2015 7:16 AM To: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; Greg Shatan <gregshatanipc@gmail.com>; Avri Doria <avri@acm.org> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Hello Pedro Please see in-line On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote: Dear Greg, Avri, Thanks for your comments. I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here. I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw". The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object. With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system. With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014? https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment. Many thanks for clarifying. Matthew Regards, Pedro _____ De: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] em nome de Greg Shatan [gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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 -- Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology mshears@cdt.org <mailto:mshears@cdt.org> + 44 771 247 2987 _____ <https://www.avast.com/antivirus> This email has been checked for viruses by Avast antivirus software. www.avast.com <https://www.avast.com/antivirus>
Dear all, First of all let me join the many others that have thanked and supported Pedro’s attempt to operationalize the GAC communique from Dublin. It is the best text and attempt to find a compromise that we’ve seen so far. Two comments before talking about the substance: - First, the Dublin GAC Communiqué is based on unanimous consensus – there was no objection to it in Dublin. It would therefore be self-contradictory for CCWG to impose ST18 while rejecting the proposals from the GAC communiqué, which is the result of the very consensus ST18 is trying to preserve. - Second, simply ignoring and rejecting this proposal without trying to find a compromise would send a very negative signal to all the countries participating to the GAC, which remains the most diverse body in ICANN. Saying the community should proceed without taking into account GAC’s comments is irresponsible and diminishes the credibility of ICANN. In the many rationale that we’ve had regarding Stress Test 18 (risk of governments’ capture, stability, transparency, etc.) I the one from the document Fadi shared with us in Dublin is the clearest. In point 7 of the document, it is said that the goal of ST18 is to “reaffirm in Bylaws current requirements of Board/GAC consultation on consensus advice” so that the board “gives GAC’s consensus advice special consideration”. There is two ways to do that: a negative way (saying the current obligation of the board to find a mutually acceptable solution only applies to consensus advice) and a positive way (saying it would take a 2/3 majority of the board to reject consensus advice, versus simple majority for hypothetical non consensus advice if GAC was moving from that practice in the future). Pedro’s proposal does exactly that: preserving in bylaws the special consideration the board should give to consensus advice from GAC, by both restricting the obligation to find mutually agreed solution to consensus advice and by demanding a 2/3 majority of the board to reject such advice. Plus, if no such solution can be found, the board still has the last word in the current bylaws, which would not change: “ 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. “ I think one of the remaining issues is the definition of consensus. Nobody here has the intention to define consensus as simple majority. Current practice in GAC is no objection, current practice in ALAC is supermajority. Generally speaking, consensus means no or few objections or super majority, as opposed to simple majority. So a solution could be to modify the Section 1 of Article 11 as follows, restricting definition of consensus to the above mentioned defitions. 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: no objection, few objections or supermajority.” Ghislain de Salins (France). ________________________________ De : accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] de la part de Pedro Ivo Ferraz da Silva [pedro.ivo@itamaraty.gov.br] Envoyé : mercredi 11 novembre 2015 14:43 À : Greg Shatan; Avri Doria Cc : accountability-cross-community@icann.org Objet : [***] [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion Dear Greg, Avri, Thanks for your comments. I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here. I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that "Under this formulation, the GAC gets far more than it has under the current bylaw". The suggested language for the bylaws preserves 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 - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object. With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de Greg Shatan [gregshatanipc@gmail.com] Enviado: quarta-feira, 11 de novembro de 2015 5:04 Para: Avri Doria Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head. Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all. The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain. As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board. In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution. A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board). Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them. This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing. I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either. It is, however, a fairly complete rejection of this particular proposal, as stated. I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting. Greg On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: */_if not followed, requires finding mutually agreed solutions for implementation of that advice_/* The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation. Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one. In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found. Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language. thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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 Avri As far as I understand it, ther Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Sorry: my prior message got sent too soon... what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change. Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k"). regards Jorge Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Hi, Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me. So in other words, is it correct to read the intention of the proposal as: - that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded. _If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case. Thanks again for the clarification, avri On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote:
Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Hi Avri I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that. As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC). I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1. I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting. regards Jorge Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application. Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
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.
I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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Hi, Thanks you for the clarification. So this proposal is only for GAC. thanks avvri On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote:
The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>:
On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
*/_if not followed, requires finding mutually agreed solutions for implementation of that advice_/*
The current bylaws state:
> 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. I am wondering whether the the words 'try , in good faith and in a timely and efficient manner, ' were accidentally dropped from the newly proposed formulation.
Form my perspective there is a world of difference between requiring a genuine attempt to find a mutually acceptable solution and the requirement for finding one.
In one case if the attempt fails, the Board is still free to make a to reject the advice. In the later, the Board seems bound to find a mutually agreed upon solution without the abilty to reject the advice if no such solution can be found.
Can someone clarify this for me? I accept that having missed a few meeting lately, my understanding may be lagging, but that is my reason for returning to the proposed and existing language.
thanks
avri
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No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>:
Dear Avri
As far as I understand it, ther
Von meinem iPhone gesendet
> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: > > > > On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: > > */_if not followed, requires finding mutually agreed solutions for > implementation of that advice_/* > > The current bylaws state: > >> 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. > I am wondering whether the the words 'try , in good faith and in a > timely and efficient manner, ' were accidentally dropped from the newly > proposed formulation. > > Form my perspective there is a world of difference between requiring a > genuine attempt to find a mutually acceptable solution and the > requirement for finding one. > > In one case if the attempt fails, the Board is still free to make a to > reject the advice. In the later, the Board seems bound to find a > mutually agreed upon solution without the abilty to reject the advice if > no such solution can be found. > > Can someone clarify this for me? I accept that having missed a few > meeting lately, my understanding may be lagging, but that is my reason > for returning to the proposed and existing language. > > thanks > > avri > > > > > --- > This email has been checked for viruses by Avast antivirus software. > https://www.avast.com/antivirus > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi, Ok, I remain confused. Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't? Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances. avri On 11-Nov-15 07:16, Megan.Richards@ec.europa.eu wrote:
No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category
Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: Sorry: my prior message got sent too soon...
what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change.
Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k").
regards
Jorge
Von meinem iPhone gesendet
> Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>: > > Dear Avri > > As far as I understand it, ther > > Von meinem iPhone gesendet > >> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: >> >> >> >> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: >> >> */_if not followed, requires finding mutually agreed solutions for >> implementation of that advice_/* >> >> The current bylaws state: >> >>> 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. >> I am wondering whether the the words 'try , in good faith and in a >> timely and efficient manner, ' were accidentally dropped from the newly >> proposed formulation. >> >> Form my perspective there is a world of difference between requiring a >> genuine attempt to find a mutually acceptable solution and the >> requirement for finding one. >> >> In one case if the attempt fails, the Board is still free to make a to >> reject the advice. In the later, the Board seems bound to find a >> mutually agreed upon solution without the abilty to reject the advice if >> no such solution can be found. >> >> Can someone clarify this for me? I accept that having missed a few >> meeting lately, my understanding may be lagging, but that is my reason >> for returning to the proposed and existing language. >> >> thanks >> >> avri >> >> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi Avri As I understand it, an AC would fall under this provision if the Bylaws provide for a "trying a mutually agreed solution process" (with ultimate Board decision) in case of disagreement over the AC advice. For the time being, that procedure only exists for the GAC. hope this helps Jorge Von meinem iPhone gesendet
Am 11.11.2015 um 07:26 schrieb Avri Doria <avri@acm.org>:
Hi,
Ok, I remain confused.
Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't?
Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances.
avri
On 11-Nov-15 07:16, Megan.Richards@ec.europa.eu wrote: No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category
Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
> On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: > Sorry: my prior message got sent too soon... > > what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change. > > Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k"). > > regards > > Jorge > > Von meinem iPhone gesendet > >> Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>: >> >> Dear Avri >> >> As far as I understand it, ther >> >> Von meinem iPhone gesendet >> >>> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: >>> >>> >>> >>> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: >>> >>> */_if not followed, requires finding mutually agreed solutions for >>> implementation of that advice_/* >>> >>> The current bylaws state: >>> >>>> 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. >>> I am wondering whether the the words 'try , in good faith and in a >>> timely and efficient manner, ' were accidentally dropped from the newly >>> proposed formulation. >>> >>> Form my perspective there is a world of difference between requiring a >>> genuine attempt to find a mutually acceptable solution and the >>> requirement for finding one. >>> >>> In one case if the attempt fails, the Board is still free to make a to >>> reject the advice. In the later, the Board seems bound to find a >>> mutually agreed upon solution without the abilty to reject the advice if >>> no such solution can be found. >>> >>> Can someone clarify this for me? I accept that having missed a few >>> meeting lately, my understanding may be lagging, but that is my reason >>> for returning to the proposed and existing language. >>> >>> thanks >>> >>> avri >>> >>> >>> >>> >>> --- >>> This email has been checked for viruses by Avast antivirus software. >>> https://www.avast.com/antivirus >>> >>> _______________________________________________ >>> 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
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Let's find a moment to clarify orally instead of flooding all others with these exchanges and I rather suspect trying their patience Sent from my iPhone. Please excuse any typing errors
On 11 Nov 2015, at 07:27, Avri Doria <avri@acm.org> wrote:
Hi,
Ok, I remain confused.
Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't?
Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances.
avri
On 11-Nov-15 07:16, Megan.Richards@ec.europa.eu wrote: No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category
Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri
> On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: > Sorry: my prior message got sent too soon... > > what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change. > > Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k"). > > regards > > Jorge > > Von meinem iPhone gesendet > >> Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>: >> >> Dear Avri >> >> As far as I understand it, ther >> >> Von meinem iPhone gesendet >> >>> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: >>> >>> >>> >>> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: >>> >>> */_if not followed, requires finding mutually agreed solutions for >>> implementation of that advice_/* >>> >>> The current bylaws state: >>> >>>> 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. >>> I am wondering whether the the words 'try , in good faith and in a >>> timely and efficient manner, ' were accidentally dropped from the newly >>> proposed formulation. >>> >>> Form my perspective there is a world of difference between requiring a >>> genuine attempt to find a mutually acceptable solution and the >>> requirement for finding one. >>> >>> In one case if the attempt fails, the Board is still free to make a to >>> reject the advice. In the later, the Board seems bound to find a >>> mutually agreed upon solution without the abilty to reject the advice if >>> no such solution can be found. >>> >>> Can someone clarify this for me? I accept that having missed a few >>> meeting lately, my understanding may be lagging, but that is my reason >>> for returning to the proposed and existing language. >>> >>> thanks >>> >>> avri >>> >>> >>> >>> >>> --- >>> This email has been checked for viruses by Avast antivirus software. >>> https://www.avast.com/antivirus >>> >>> _______________________________________________ >>> 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
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Whilst Megan is right, I have to agree further in that flooding the traffic with major, major changes is also a way to almost completely exclude meaningful participation from those of us Participants who are actively TRYING (and failing) to keep up. On 11/11/2015 12:35 PM, Megan.Richards@ec.europa.eu wrote:
Let's find a moment to clarify orally instead of flooding all others with these exchanges and I rather suspect trying their patience
Sent from my iPhone. Please excuse any typing errors
On 11 Nov 2015, at 07:27, Avri Doria <avri@acm.org> wrote:
Hi,
Ok, I remain confused.
Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't?
Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances.
avri
On 11-Nov-15 07:16, Megan.Richards@ec.europa.eu wrote: No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category
Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
> Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>: > > Hi, > > Thank you for the clarification. While I realized that later in the > text it do include the phrase about it being an honest and genuine > _attempt_, that first line give a different impression and is perhaps > confusing - it certainly is confusing to me. > > So in other words, is it correct to read the intention of the proposal as: > > - that the relationship between GAC advice and the Board's ability to > reject it would remain the same as it is now with the exception of > requiring a higher Board threshold to vote against of 2/3 > - all AC would get the same common courtesy that the GAC is currently > afforded. > > _If_ that is the proposal, that is one I can support. I believe that > the Board can and should reject advice if warranted, just as they can > reject SO recommendations. I believe there should be redress for such > rejection. And I have no objection to raising the Board's voting > threshold in that case. > > Thanks again for the clarification, > > avri > > > >> On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: >> Sorry: my prior message got sent too soon... >> >> what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change. >> >> Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k"). >> >> regards >> >> Jorge >> >> Von meinem iPhone gesendet >> >>> Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>: >>> >>> Dear Avri >>> >>> As far as I understand it, ther >>> >>> Von meinem iPhone gesendet >>> >>>> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: >>>> >>>> >>>> >>>> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: >>>> >>>> */_if not followed, requires finding mutually agreed solutions for >>>> implementation of that advice_/* >>>> >>>> The current bylaws state: >>>> >>>>> 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. >>>> I am wondering whether the the words 'try , in good faith and in a >>>> timely and efficient manner, ' were accidentally dropped from the newly >>>> proposed formulation. >>>> >>>> Form my perspective there is a world of difference between requiring a >>>> genuine attempt to find a mutually acceptable solution and the >>>> requirement for finding one. >>>> >>>> In one case if the attempt fails, the Board is still free to make a to >>>> reject the advice. In the later, the Board seems bound to find a >>>> mutually agreed upon solution without the abilty to reject the advice if >>>> no such solution can be found. >>>> >>>> Can someone clarify this for me? I accept that having missed a few >>>> meeting lately, my understanding may be lagging, but that is my reason >>>> for returning to the proposed and existing language. >>>> >>>> thanks >>>> >>>> avri >>>> >>>> >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> 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 > > _______________________________________________ > 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
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Notwithstanding the transparency concerns this suggestion offers, it is more evidence that even the authors of the CCWG proposal don't understand it themselves. el On 2015-11-11 14:35, Megan.Richards@ec.europa.eu wrote:
Let's find a moment to clarify orally instead of flooding all others with these exchanges and I rather suspect trying their patience
Sent from my iPhone. Please excuse any typing errors
On 11 Nov 2015, at 07:27, Avri Doria <avri@acm.org> wrote:
Hi,
Ok, I remain confused.
Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't?
Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances.
avri [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Hi, Assuming that I am the only one that was confused about the new text, I will stop asking questions on the list. I had not assumed these new proposals were crystal clear to everyone else. Though, to be honest, I thought that is what the list is for, discussions and clarifications. I guess I still have a lot to learn about how working groups function. avri On 11-Nov-15 09:35, Megan.Richards@ec.europa.eu wrote:
Let's find a moment to clarify orally instead of flooding all others with these exchanges and I rather suspect trying their patience
Sent from my iPhone. Please excuse any typing errors
On 11 Nov 2015, at 07:27, Avri Doria <avri@acm.org> wrote:
Hi,
Ok, I remain confused.
Are you saying that if they call their advice 'consensus advice' it can apply if they claim that status, but otherwise it doesn't?
Please forgive me for my inability to truly understand what is being proposed. Perhaps I have been supporting the notion of equal footing in multistakeholder process for too long to understand some of the nuances.
avri
On 11-Nov-15 07:16, Megan.Richards@ec.europa.eu wrote: No. It applies to all future and existing ACs where that particular condition regarding their advice applies. For the moment only GAC falls into that category
Sent from my iPad
On 11 Nov 2015, at 07:14, Avri Doria <avri@acm.org> wrote:
Hi,
Thanks you for the clarification.
So this proposal is only for GAC.
thanks
avvri
On 11-Nov-15 07:01, Megan.Richards@ec.europa.eu wrote: The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
> Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>: > > Hi, > > Thank you for the clarification. While I realized that later in the > text it do include the phrase about it being an honest and genuine > _attempt_, that first line give a different impression and is perhaps > confusing - it certainly is confusing to me. > > So in other words, is it correct to read the intention of the proposal as: > > - that the relationship between GAC advice and the Board's ability to > reject it would remain the same as it is now with the exception of > requiring a higher Board threshold to vote against of 2/3 > - all AC would get the same common courtesy that the GAC is currently > afforded. > > _If_ that is the proposal, that is one I can support. I believe that > the Board can and should reject advice if warranted, just as they can > reject SO recommendations. I believe there should be redress for such > rejection. And I have no objection to raising the Board's voting > threshold in that case. > > Thanks again for the clarification, > > avri > > > >> On 11-Nov-15 06:23, Jorge.Cancio@bakom.admin.ch wrote: >> Sorry: my prior message got sent too soon... >> >> what I intended to remark: I think that the current wording on the "mutually agreed solution process" which is specific to the GAC would not change. >> >> Hence: 1) it would remain as an obligation to "try" to find such a mutually accepted solution. 2) the Board would in any case retain ultimate decision (current letter "k"). >> >> regards >> >> Jorge >> >> Von meinem iPhone gesendet >> >>> Am 11.11.2015 um 06:18 schrieb Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>: >>> >>> Dear Avri >>> >>> As far as I understand it, ther >>> >>> Von meinem iPhone gesendet >>> >>>> Am 11.11.2015 um 00:37 schrieb Avri Doria <avri@acm.org>: >>>> >>>> >>>> >>>> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote: >>>> >>>> */_if not followed, requires finding mutually agreed solutions for >>>> implementation of that advice_/* >>>> >>>> The current bylaws state: >>>> >>>>> 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. >>>> I am wondering whether the the words 'try , in good faith and in a >>>> timely and efficient manner, ' were accidentally dropped from the newly >>>> proposed formulation. >>>> >>>> Form my perspective there is a world of difference between requiring a >>>> genuine attempt to find a mutually acceptable solution and the >>>> requirement for finding one. >>>> >>>> In one case if the attempt fails, the Board is still free to make a to >>>> reject the advice. In the later, the Board seems bound to find a >>>> mutually agreed upon solution without the abilty to reject the advice if >>>> no such solution can be found. >>>> >>>> Can someone clarify this for me? I accept that having missed a few >>>> meeting lately, my understanding may be lagging, but that is my reason >>>> for returning to the proposed and existing language. >>>> >>>> thanks >>>> >>>> avri >>>> >>>> >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> 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 > > _______________________________________________ > 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
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I fail to see why we must do something wrong with one party because of something wrong is done with another. Never mind that these are quite different. The way I understand this is that GAC seems to want to be able to give advice on *ANY* issue (even gNSO, ones, to wit .AFRICA) with the Board only being able to overrule by 2/3. Whereas the gNSO does not purport to want to be able to Develop Policy interfering with GAC affairs. I do not have a problem with the Board needing 2/3 to overrule GAC advice on intrinsic GAC issues. I am quite certain that this would not only clash with the Policy Development Processes of the SOs but also quite squarely fall under the condition of governments *NOT* to get control, which the NTIA has set. el On 2015-11-11 12:01, Megan.Richards@ec.europa.eu wrote:
The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
The Dr thinks it's wrong for GAC to advice on a continental TLD that actually requires support of a continental government body in the first place. The young me thinks that is just not appropriate and does not equate to GAC having more control. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 11 Nov 2015 11:30, "Dr Eberhard W Lisse" <el@lisse.na> wrote:
I fail to see why we must do something wrong with one party because of something wrong is done with another.
Never mind that these are quite different.
The way I understand this is that GAC seems to want to be able to give advice on *ANY* issue (even gNSO, ones, to wit .AFRICA) with the Board only being able to overrule by 2/3.
Whereas the gNSO does not purport to want to be able to Develop Policy interfering with GAC affairs.
I do not have a problem with the Board needing 2/3 to overrule GAC advice on intrinsic GAC issues.
I am quite certain that this would not only clash with the Policy Development Processes of the SOs but also quite squarely fall under the condition of governments *NOT* to get control, which the NTIA has set.
el
On 2015-11-11 12:01, Megan.Richards@ec.europa.eu wrote:
The text proposed by Brazil does not do what Avri asks in her second indent. At least not as per current provisions and application.
Sent from my iPad
On 11 Nov 2015, at 06:57, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:
Hi Avri
I cannot speak for the degree this would apply to other AC, but certainly I feel as it is stated in horizontal terms, there would be room for that.
As to your "summary" it is important to add that the 2/3 threshold would only be applicable to "consensus" advice from the AC in question (in our case, the GAC).
I have heard some concerns that merely saying "consensus" might be in the future not enough in an hipothesis where the AC in question would arbitralily define "consensus" as 50+1.
I am sure that there is no hidden agenda in this regard and that it would be possible for us to agree on wording which would male clear that consensus by definition rules out such kind of majority voting.
regards
Jorge
Von meinem iPhone gesendet
Am 11.11.2015 um 06:41 schrieb Avri Doria <avri@acm.org>:
Hi,
Thank you for the clarification. While I realized that later in the text it do include the phrase about it being an honest and genuine _attempt_, that first line give a different impression and is perhaps confusing - it certainly is confusing to me.
So in other words, is it correct to read the intention of the proposal as:
- that the relationship between GAC advice and the Board's ability to reject it would remain the same as it is now with the exception of requiring a higher Board threshold to vote against of 2/3 - all AC would get the same common courtesy that the GAC is currently afforded.
_If_ that is the proposal, that is one I can support. I believe that the Board can and should reject advice if warranted, just as they can reject SO recommendations. I believe there should be redress for such rejection. And I have no objection to raising the Board's voting threshold in that case.
Thanks again for the clarification,
avri [...]
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Dear Pedro, Thank you very much for your efforts in operationalizing the GAC consensus input regarding ST 18 into bylaw text from Brazil's perspective. This is certainly not an easy task. Here are a few comments from our side: · In our view the GAC consensus input does not include a mention of "will make every effort to ensure", as such, and to be true to GAC’s consensus input, "make every effort to" should be deleted (marked with brackets in the text below). · With regard to Bullit point 3 "The value the Board attributes to receiving consensus advice",we are of the view that the underlying purpose, will not be reflected adequately if the current definition of GAC consensus advice changes. The reason is that the Board will be put in an awkward position in situations where there is no agreement between governments. Best, Finn Sendt fra min iPad Den 9. nov. 2015 kl. 11.32 skrev Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>>: 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 Pedro I generally applaud your proposal as a valuable input from Brazil's perspective into the GAC's consideration of this issue as the committee follows up its consideration in Dublin of the key elements of the issues raised by Stress Test 18 as recorded in the communique. However, I agree with Finn's point that "*make every effort to*" strikes me as a variant on what the GAC agreed in Dublin and so I support his suggestion to you therefore that you might delete that element of your text proposal. The key point which I wish to underline in the context of this comment on your proposal is the UK's position that the GAC should make *irrevocably* clear to CCWG colleagues that the GAC will continue to fulfil its role in, and commitment to, the ICANN community through the provision of consensus-based advice to the Board. As I have made clear in previous statements, the UK would oppose any proposal to derogate from that specific commitment. Kind regards Mark Mark Carvell United Kingdom Representative on the Govenmental Advisory Committee of ICANN Mark Carvell Global Internet Governance Policy Department for Culture, Media and Sport mark.carvell@culture.gov.uk tel +44 (0) 20 7211 6062 On 11 November 2015 at 17:06, Finn Petersen <FinPet@erst.dk> wrote:
Dear Pedro,
Thank you very much for your efforts in operationalizing the GAC consensus input regarding ST 18 into bylaw text from Brazil's perspective. This is certainly not an easy task.
Here are a few comments from our side:
· In our view the GAC consensus input does not include a mention of *"will make every effort to ensure",* as such, and to be true to GAC’s consensus input, *"make every effort to"* should be deleted (marked with brackets in the text below).
· With regard to Bullit point 3 *"The value the Board attributes to receiving consensus advice",*we are of the view that the underlying purpose, will not be reflected adequately if the current definition of GAC consensus advice changes. The reason is that the Board will be put in an awkward position in situations where there is no agreement between governments.
Best,
Finn
Sendt fra min iPad
Den 9. nov. 2015 kl. 11.32 skrev Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br>:
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
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participants (22)
-
Avri Doria -
DE SALINS Ghislain -
Dr Eberhard W Lisse -
Drazek, Keith -
Finn Petersen -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
Mark Carvell -
Matthew Shears -
Megan.Richards＠ec.europa.eu -
Mueller, Milton L -
Nigel Roberts -
Olga Cavalli -
Paul Rosenzweig -
Pedro Ivo Ferraz da Silva -
Perez Galindo, Rafael -
Robin Gross -
Roelof Meijer -
Rubens Kuhl -
Schaefer, Brett -
Seun Ojedeji