Re: [S18] RES: RES: Slight variation on FInn's text

+ 1 Keith On 23/11/2015 13:50, Drazek, Keith wrote:

All,

After further consideration over the weekend, I'm concerned this sub-group, and the CCWG, will propose significant structural changes that will not receive support from the chartering organizations. Increasing the power/influence of governments is likely to be a non-starter with many community groups. The current proposals would give the GAC two thresholds for determining consensus advice AND require the Board treat both with special deference. The 2/3 threshold was previously rejected by the community. Why do we think that's likely to receive broad community support now? As I've noted previously, members of the RySG do not support this move. I'm worried we're setting ourselves up for failure with the chartering organization approval process. The ST18 language has survived the previous comment periods with broad support, so in my view that should be the default proposal. These new suggestions do not carry the same weight in the context of our evolving work output. As such, I believe we should maintain the ST18 language and defer other changes that would empower the GAC to Work Stream 2.

Regards, Keith

-----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Roelof Meijer Sent: Monday, November 23, 2015 8:03 AM To: Avri Doria; s18@icann.org Subject: Re: [S18] RES: RES: Slight variation on FInn's text

Dear all,

Probably quite unsurprising, I am in complete agreement with Avri here.

Yes, it is a well reasoned -and by consequence a very reasonable- compromise offering, that does not require the amendment Brett proposes. The proposed difference in treatment of full consensus advice versus near-consensus advice should be acceptable to the community. In the case of any SO or AC, so also in the case of the GAC.

And no, if the board deals with full/near consensus advice from GAC in line with the proposal, this does not put the board in the situation of judging between states. It will just deal with GAC advice in line with the GAC advice on how to deal with GAC advice… Right?

I find it no more than logic that it should not be too easy for the board to reject the consensus or near consensus advice from any SO or AC, including the GAC representing a significant number of governments. But if there are good reasons to reject such advice, the community will speak and the board’s vote will pass the treshold. Yes, the will then be an obligation to “TRY, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”. Both in the case of consensus as wel ass near-consensus advice. In that light, I would like to reiterate what I stressed before: we seem to depart in our thinking only from the position that GAC advice in most cases is something that the community would not like to follow and that the board is with the community on that. Maybe there should be a ST18bis: sound near consensus advice from the GAC that only one GAC member and the majority of the board want to kill…

Let’s be realistic and responsible and accept this proposal.

Best,

Roelof Meijer

On 22-11-15 12:21, "s18-bounces@icann.org on behalf of Avri Doria" <s18-bounces@icann.org on behalf of avri@ella.com> wrote:

...

Hi,

I find it hard to support the amendment to what seems to me a well reasoned compromise offering. In considering this compromise offering consider that Board-GAC negotiations are not bi-laterals that happen in a vacuum. They are extended events that occur within the context of the entire bottom up multistakeholder process.

In my opinion a proper policy development process requires not only that all AC* issues be discussed fully with an attempt to resolve the issue, but that this discussion take into account the bottom up multistakeholder process, a process that does not end when a recommendation is made by an SO. I think that in the process of these discussions the Board is not only responsible for genuine dialogue and understanding, but that it must reach out to the SO that made the recommendation and the rest of the community during such a dialogue; it must involve the bottom up multistakeholder process (BUMP) to which ICANN is committed. Near-consensus advice, if the GAC decides to give such near-consensus advice, is also serious in that it involves most of the states participating in GAC and should be properly considered by the board with the inclusion of all stakeholders, including the GAC members who were not part of the near-consensus.

I think that saying that this puts the board in the position of judging between states is an exaggeration. The board is in the position of judging the advice of the AC and the recommendation of the bottom up community process (BUMP), going back to the community for its clarifications and considerations as well as wider public consultation. and then it must do what is best for ICANN. And if community consultations show a united opinion against the advice, the Board will have a strong motivation for rejecting the advice as not in the best interests of ICANN and the Internet community. To some this may seem quixotic, but I think that the BUMP clause being added to the Articles backs up this view. I also point to various changes made by the GNSO and approved by the Board for more nuanced consultations between the Board and the GNSO which can be used during such negotiations with the GAC. I do not know enough about ccNSO or ASO procedures, but I expect it is possible for the Board to consult them during negotiations with the GAC. Some have argued that the Board is incapable of saying no to the GAC despite their ability to say no to the rest of the community, and thus no amount of BUMP can save us from a GAC dominated policy process. I believe otherwise, and especially now that SOs will be able to remove a Board member who cannot say no the GAC, sooner than the next election if needs be. I believe the Board will learn to say no, if the GAC advice privilege is abused in the future, whether for consensus or near consensus advice.

What we need to deal with is the erroneous assumption that negotiation means agreement by the Board. As it is a best-effort negotiation, rejection is always a possible outcome. We also need to realize that within the newly revised Articles and Bylaws this does not constitute a "proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution. " Advice that can be rejected by the Board in consultation within the Community BUMP is not a government led solution.

So I can support the idea of Board best-effort negotiations even with GAC near consensus, as long as the Board does it in a manner that is consistent with ICANN's bottom up multistakeholder practice. I can also support raising the Board requirement to 2/3 in the case of full consensus, as I believe that if rejecting the advice is what the community consensus wants done, it will be rejected.

avri

* By all AC I mean ALAC, SSAC and RSSAC too. Personally I think they should have an opportunity for the same bylaws privileged of negotiation that the GAC gets. I know that is not under discussion in WS1. It was discussed in ATRT2, though not accepted, and I expect it will be discussed again someday in the future.

On 20-Nov-15 13:59, James Gannon wrote:

...

I think that this is a friendly amendment that our GAC colleagues should seriously consider. I think it keeps the spirit of compromise while moving the discussion forward.

-jg

From: "Schaefer, Brett" <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> Date: Friday 20 November 2015 at 6:57 p.m. To: Mark Carvell <mark.carvell@culture.gov.uk <mailto:mark.carvell@culture.gov.uk>>, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> Cc: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>, "s18@icann.org <mailto:s18@icann.org>" <s18@icann.org <mailto:s18@icann.org>>, Nick Shorey <nick.shorey@culture.gov.uk <mailto:nick.shorey@culture.gov.uk>> Subject: RE: [S18] RES: RES: Slight variation on FInn's text

Thanks Mark,

I appreciate this. There remains considerable skepticism about this from some quarters. However, based on several conversations I’ve had, if you could live with the friendly amendment I proposed, I think this would be resolved. Even with that change, the text would be more toward the GAC position that the text in the 2^nd draft.

Best,

Brett

*From:*Mark Carvell [mailto:mark.carvell@culture.gov.uk] *Sent:* Friday, November 20, 2015 1:44 PM *To:* Pedro Ivo Ferraz da Silva *Cc:* Paul Rosenzweig; Schaefer, Brett; s18@icann.org <mailto:s18@icann.org>; Nick Shorey *Subject:* Re: [S18] RES: RES: Slight variation on FInn's text

Pedro + ST18 colleagues

I agree we made very good progress towards a solution today but we will all need to review carefully especially in view of the politically sensitive nature of the core issues here.

In the light of today's call, Anders, Finn, Gema, Jorge and I as members of the European group have have had a go at revising the text to reflect what we believe is the common ground of today's discussion, if not yet final agreement.

Following a consultation with Thomas Schneider in his capacity as GAC Chair, I now submit this on behalf of the participating European governments to the ST18 Group as a basis for discussion ahead of the call on Monday. We look forward very much to hearing views online and indeed on the Monday call.

In the meantime, I hope everyone on ST18 has a great, stress-free weekend!

Best regards

Mark

Mark Carvell

​United Kingdom Representative on the Governmental Advisory Committee of ICANN​

Global Internet Governance Policy

Department for Culture, Media and Sport

mark.carvell@culture.gov.uk <mailto:mark.carvell@culture.gov.uk>

tel +44 (0) 20 7211 6062

On 20 November 2015 at 18:14, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:

Dear Paul,

Thanks for your email. I amicably ask you to refrain from inferring more than what is literally indicated in my email.

My objection is with regards Brett's amendment to Finn's text. For the reasons stated below.

With regards to Finn's original proposal (without Brett's addition), Brazil is still evaluating the language. My immediate reaction is that it goes beyond the Dublin Communiqué, but still deserves a closer analysis. I am sure some other countries within the GAC are in the same position.

Kind regards,

Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609>

Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609>

--------------------------------------------------------------------- --- BrettSchaefer 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/>

-----Mensagem original----- De: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>] Enviada em: sexta-feira, 20 de novembro de 2015 13:28 Para: Pedro Ivo Ferraz da Silva; 'Schaefer, Brett'; s18@icann.org <mailto:s18@icann.org> Assunto: RE: [S18] RES: Slight variation on FInn's text

BTW, you do realize, don’t you Pedro that you are rejecting not just Brett’s text, but Finn’s proposal as well. Does this not suggest that perhaps your view is isolated even within the GAC?

Paul

Paul Rosenzweig

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From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>] Sent: Friday, November 20, 2015 9:59 AM To: 'Schaefer, Brett' <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>>; s18@icann.org <mailto:s18@icann.org> Subject: [S18] RES: Slight variation on FInn's text

Dear Brett,

Thank you for the proposed text, but as it was stated during the call, the language below does not grant the GAC any flexibility to determine the definition of consensus in its decision-making process for the advice to be given to the Board (and for which the Board needs to try to find a mutually acceptable solution). As you know, this flexibility is essential for the GAC, as it was stated in the GAC Dublin Communiqué.

I would say that your previous proposal (from yesterday) was more closer to the spirit of compromise needed in the current stage of our work.

Regards,

Secretário Pedro Ivo Ferraz da Silva

Divisão da Sociedade da Informação (DI)

Ministério das Relações Exteriores - Brasil

T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609>

Secretary Pedro Ivo Ferraz da Silva

Division of Information Society (DI)

Ministry of External Relations - Brazil

T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609>

De: s18-bounces@icann.org <mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org <mailto:s18-bounces@icann.org>] Em nome de Schaefer, Brett Enviada em: sexta-feira, 20 de novembro de 2015 12:10 Para: s18@icann.org <mailto:s18@icann.org> Assunto: [S18] Slight variation on FInn's text

As I mentioned in the Adobe chat, here is the slightly modified text proposed by Finn.

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.

________________________________

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 <tel:202-608-6097> heritage.org <http://heritage.org> <http://heritage.org/>

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