Apologies for posting this so close to the next call, but when this discussion began moving forward on Friday I was involved in the last day of the INTA Leadership meeting in Panama City, Panama, and just arrived home yesterday.

This proposed edit relates to a matter I have brought up in two S18 calls – a concern that GAC consensus advice might provide the GAC with a means of independently advancing policy outside the existing PDP structure.

Below is a proposed variation of the last iteration. Its principal amendment is the inclusion of the clause “issues related to matters under deliberation or implementation within the ICANN community” in the opening sentence. Traditionally, GAC advice has been reactive to ongoing deliberations within the ICANN community, or to the implementation of decisions made as a result of the deliberative process.

This clause addresses the possibility that the GAC might wish to initiate advice on maters not falling within the scope of deliberation and implementation; that is, matters originating from within the GAC. The GAC could provide advice on such matters without seeking to engage a broader community process, but the Board could give it whatever level of deference it deemed suitable.

However, if the GAC engaged in outreach to other portions of the ICANN community and gained the support for a deliberative process addressing the matter, its consensus advice would then be granted the degree of discretion set in the Bylaws.

This language would establish an incentive for the GAC to engage in constructive dialogue with the community on matters that were not be being addressed and that it deemed worthy of deliberation (and in this way builds upon the ongoing efforts of the GNSO to better engage with the GAC on policy development).

It would also substantially assure that, notwithstanding the amendment of the Bylaws to require a 2/3 Board vote to reject GAC consensus advice, a post-transition ICANN would not be subject to governmental control on matters outside its mission and remit, and thereby provide assurance to the NTIA and the US Congress that this prerequisite has been effectively met.

I look forward to discussing this on our call.

Here is my edited version along with accompanying notes. A redline version showing variations from Brett’s 11/20 draft is attached.

The advice of the Governmental Advisory Committee on public policy issues related to matters under deliberation or implementation within the ICANN community[PC1] 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 such Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice.

Any such GAC advice approved by a full[PC2] GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board.

Any advice approved by the GAC by consensus with objections [PC2] from a very small minority[PC3] of GAC members, may be rejected by a majority vote of the Board.

If the Board rejects GAC consensus advice[PC4] , the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

Philip S. Corwin, Founding Principal

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From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Schaefer, Brett
Sent: Friday, November 20, 2015 9:55 AM
To: Mathieu Weill; Finn Petersen; s18@icann.org
Subject: Re: [S18] Document for ST18 call Nov 20

Thank you Mathieu. To put everything in one place, here is the proposal with my friendly amendment:

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, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board. Any advice approved by the GAC with objections from a very small minority of GAC members, but falling short of consensus, may be rejected by a majority vote of the Board. If the Board rejects GAC consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Governmental Advisory Committee should ensure that their advice to the Board is clear.

The reason for this is that the Board should not be put in the position of negotiating between various GAC members. It should be up to the GAC to present a consensus position before the Board should be required to try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

Best,

Brett

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

From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Mathieu Weill
Sent: Friday, November 20, 2015 9:53 AM
To: Finn Petersen; s18@icann.org
Subject: Re: [S18] Document for ST18 call Nov 20

Many thanks for your proposal Finn. And thanks to all contributors of today’s call, which was very useful in clarifying each party’s conditions and perspectives.

As discussed during the call, we encourage consideration of the proposal below, as well as suggested amendments, tobe provided before our next, and last, call on Monday 14 UTC. Invites will be sent out shortly.

Monday’s call outcome will be a decision about which option(s) to report to the CCWG. The CCWG will then have to decide which option to include as part of its Draft Report.

Best regards,

Mathieu Weill

De : Finn Petersen [mailto:FinPet@erst.dk]
Envoyé : vendredi 20 novembre 2015 14:52
À : 'Mathieu Weill'; s18@icann.org
Objet : SV: Document for ST18 call Nov 20

Building on Bretts suggestion, here is a proposal DK II, as a compromis

“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, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board. Any advice approved by the GAC with objections from a very small minority of GAC members, but falling short of consensus, may be rejected by a majority vote of the Board. In both instances, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Governmental Advisory Committee should ensure that their advice to the Board is clear.”

Best,

Finn

Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill
Sendt: 20. november 2015 11:47
Til: s18@icann.org
Emne: [S18] Document for ST18 call Nov 20

Dear Colleagues,

During our last call we had discussed elaborating on the Denmark proposal. Since then, there has been significant exchange on the list, with interesting new arguments being developed.

To facilitate today’s call at 13UTC (planned for 90 minutes this time) you will find attached a document that focuses on proposed edits we have received on the Denmark proposal, as well as, on page 2 a short table summarizing the different options regarding the “staggered Board decision threshold” approaches.

We look forward to a fruitful call.

--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill@afnic.fr
Twitter : @mathieuweill
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