Dear Jorge You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul and all, Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase". And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal. Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. Hope these considerations are helpful Regards Jorge -----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18