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October 2014

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FILED: BC comment on proposed bylaws change for board consideration of GAC advice
by Steve DelBianco 05 Oct '14

05 Oct '14

After a 14-day review with no objections, we filed comments today on ICANN’s proposal to change voting thresholds on GAC Advice. I formatted the draft comment to match BC submission layout (attached). Thanks again to Brian Huseman, who had help from Aparna Sridhar, Phil Corwin, David Fares, and J Scott Evans. John Berard and Marilyn Cade also provided input. From: Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Wednesday, September 24, 2014 at 4:22 PM To: BC Private <bc-private(a)icann.org<mailto:bc-private@icann.org>> Subject: FOR REVIEW: BC comment on proposed bylaws change for board consideration of GAC advice ICANN has a public comment period on a proposed bylaws change for board consideration of GAC advice (link<https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en>) (reply comments by 6-Oct) We discussed this on our last two BC member calls (see emails below) Attached is a draft comment prepared by Brian Huseman and edited by Aparna Sridhar, Phil Corwin, David Fares, J Scott Evans. John Berard and Marilyn also provided input. It’s now time for rest of BC members to review and comment — please REPLY ALL well before the 6-Oct deadline. Thanks again to the drafters for accommodating member views with a cohesive and articulate statement. From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Tuesday, September 23, 2014 11:04 AM To: Huseman, Brian; Aparna Sridhar; Marilyn Cade; David Fares; Phil Corwin; J Evans Cc: BC Private Subject: BC Comment on 2/3 vote threshold to reject GAC advice Thanks for working on a draft comment on the proposed bylaws change to require 2/3 board vote to reject GAC advice (link<https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en>) (reply comments by 6-Oct) As a follow-up to last week’s BC Member call, here are some points I noted from our discussion: Let’s be positive in our tone, instead of sounding critical of the GAC. This bylaws change is not being pushed by the GAC. It arises from ATRT back in 2010. It’s unfortunate timing to consider this bylaws change in the midst of Enhancing ICANN Accountability as part of the IANA transition. The BC proposal for Enhancing ICANN Accountability included a ‘stress test’ based on GAC changing its procedures to majority voting (see below). That should be considered as part of this discussion. (link<http://www.bizconst.org/wp-content/uploads/2014/07/BC-initial-comment-on-En…>) The BC proposal called for a permanent cross-community working group with new powers to ensure ICANN board and management are accountable to the community. And we specifically included the GAC as a voting member of that cross-communtiy working group. (link<http://www.bizconst.org/wp-content/uploads/2014/07/BC-initial-comment-on-En…>) The most promising path is getting governments engaged earlier and more specifically in the policy development process. Hope this helps with your drafting. Let me know what I can do facilitate getting a draft to BC members before the 6-Oct comment deadline. —Steve From: Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Tuesday, August 19, 2014 at 6:30 PM To: BC Private <bc-private(a)icann.org<mailto:bc-private@icann.org>> Subject: Regarding proposed change to ICANN Bylaws for overriding GAC Advice ICANN announced last week a proposed change to its Bylaws (link<https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en>). This change would make it harder for the board to reject GAC Advice, by raising the voting threshold from simple majority to 2/3 majority. This change arose from recommendations and follow-up to the first review team on Accountability and Transparency, back in 2010-11. To help BC members evaluate this proposal, here are some prior positions, perspectives (and my personal advice): The new gTLD program Guidebook raised the board's obligation to respond to GAC consensus advice, but this requirement does not apply to general GAC advice outside the new gTLD program, which is governed by the bylaws. Throughout the new gTLD program and RAA revision, the BC has sought help from the GAC to pressure ICANN on consumer protection, security requirements, etc. Toward that end, we have sometimes encouraged the board to follow GAC advice (singular-plural TLDs and regulated industries, etc.) In Mar-2011, for example, we supported much of the GAC’s Scorecard advice on new gTLDs (link<http://www.bizconst.org/wp-content/uploads/2014/06/BC-Statement-on-Board-Re…>). However, we did not recommend raising the voting threshold. In Mar-2014<http://www.bizconst.org/wp-content/uploads/2014/07/BC-Comments-ATRT2-Final.…>, the BC went this far regarding advice from Advisory Committees, but did not endorse a new voting level: The BC fully supports ATRT2’s recommendation to institutionalize ICANN’s obligation to respond to review team recommendations: 9.1 Mandate Board Response to Advisory Committee Formal Advice ICANN Bylaws Article XI should be amended to include: The ICANN Board will respond in a timely manner to formal advice from all Advisory Committees explaining what action it took and the rationale for doing so. In our Jun-2014 comment on Enhancing ICANN Accountability (link<http://www.bizconst.org/wp-content/uploads/2014/07/BC-initial-comment-on-En…>), we included this 'stress test’ regarding bylaws and GAC advice: Scenario: Governments in ICANN’s Government Advisory Committee (GAC) amend their operating procedures to change from consensus decisions to majority voting. Today GAC adopts formal advice according to its Operating Principle 47: “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.”13 But the GAC may at any time change its procedures to use majority voting, where each government has equal voting power, such as in the UN and ITU. (Notably, only 61 governments were present at the GAC meeting in Singapore during March 2014, where several GAC members expressed dissatisfaction with the multistakeholder process and consensus threshold for new gTLD program advice.) While ICANN’s board is not strictly obligated to follow GAC advice, this scenario should assess how ICANN could respond to GAC advice with strong majority support but less than consensus. This scenario might also indicate need to amend ICANN bylaws regarding deference to GAC advice that is not supported by consensus. Cite: ICANN Government Advisory Committee (GAC) - Operating Principles, October, 2011, at https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles This stress test indicated a BC belief that only ‘consensus’ GAC Advice should receive deference from ICANN. My personal advice (not yet confirmed by NetChoice members) is that we should support the new 2/3 rejection threshold ONLY FOR GAC CONSENSUS ADVICE. In other words, we could suggest that the bylaws specifically reference and define 'GAC consensus advice’ that should require 2/3 board majority to reject. Any GAC advice with less than consensus would not require 2/3 to reject. Hope that helps, and look forward to the discussion on list and on next week’s call. —Steve From: John Berard <john(a)crediblecontext.com<mailto:john@crediblecontext.com>> Date: Tuesday, August 19, 2014 at 1:26 PM I would like to make the case against this by-laws change by placing it in proper perspective. There are a number of ways the GAC has asserted extra-organizational rights (start with the fact that the GAC advice on new gTLDs was to be done on a string-by-string basis) that makes this by-laws change of greater significance than when viewed on its own. Setting aside the rubber-stamp instinct of the Board, it is unlikely that GAC advice would ever be rejected.

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