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 todays 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 <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
Colleagues I will not be able to join you in 30 minutes (I hear the screams of joy :)) so let me make my position completely clear. The question is not the definition of consensus but the definition of when the Board must accept the GACs advice unless it can muster a 2/3rd vote to reject it. Today the answer to that question is never there are no circumstances at all under which the Board is required to accept GAC advice over the objection of a majority of the Board. The GAC wants more. And simply saying that defines the problem. It cannot have more. It cannot have more from the perspective of the private sector and it cannot, I strongly suspect, have more from the perspective of the US government (either the NTIA or Congress). There is no agreement none in this forum or in the CCWG more broadly for expanding the GACs role. The only source of such a push is the GAC itself. Let me respond to Jorges attempt to paint this as changed circumstance. He is right, circumstances are changed --- but they are changed in ways that argue against the GAC, not for it. The most notable, of course, is that the NTIA contract is going away the soft oversight that has prevented GAC overreach in the past. The other is that the GAC may very well join the Sole Designator (or whatever we are now calling it) as a voting member where it can block Designator oversight of the Board. So if we are talking about stress tests, here is the failure mode that would follow agreement to the less than full consensus proposal from Denmark: * A super majority of the GAC forces through advice over the objections of, say, 5 nations including [INSERT YOUR COUNTRY HERE] * 2/3rd of the Board minus 1 disapprove the advice, but it still goes into effect because 1/3rd plus 1 of the Board are in agreement and/or captured * The Designator is unable to act to correct this error because the GAC is a voting member who blocks consensus there and weilds its influence to prevent action * Result: A policy that a majority of the community and the majority of the Board disapprove of automatically goes into effect Ive been looking a bit at where the current UN definition of consensus (absence of formal objection) comes from. It seems to have originated with the Law of the Sea treaty as a way of defining how the international community would deal with the management of a global resource (the ocean). I am struck repeatedly that a vocal group of governments now want to reject the UN model for one that empowers governments more. It would seem to me that the UN model is one we should uphold. Finally, like others who have spoken on this list (Registries, IPC, NCSG) so far I too have taken soundings and they are uniformly against enhancing GAC power. It is, in my judgment the only thing that will derail the transition. Bretts proposal that we give the 2/3rd vote hurdle to OP47/UN level full consensus --- in my mind goes too far. We should, as we have already proposed in the two prior reports, put UN consensus into the bylaw as a requirement for favored treatment of the GAC. Anything less than that will not have the support of the community and will not have the support it requires for the transition to succeed. 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: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Friday, November 20, 2015 5:47 AM To: s18@icann.org Subject: [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 todays 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 <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
Dear all, Thank you Mathieu for sharing the draft text. Apologies that I will not be able to join the coming ST#18 call. These are some feedback from some within ASO in the course of discussions. In considering options - - We support option with no change or minimum changes. The CCWG proposal should not substantially change the GAC's role and how its advice is treated by the Board. The GAC can change its definition of consensus but this should not substantially strengthen obligations for the Board to consider the GAC advice - Clarifying ambiguity in the actual practice by putting it into the text is OK With this, some expressed concerns about requiring 2/3 majority for the Board to reject GAC advice but those who expressed concerns also expressed that the text below would be OK. (Text shared by Brett)
“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, which consistent with GAC Operating Principle 47 is 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, 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 then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
This is still ongoing discussions and not an official ASO position. Overall, what I share here is a preference and not a must. No specific comments about the % or votes. i.e., no strong opinion at this stage, including its needs of either. Wish you all a fruitful meeting and I will follow up with notes. Izumi On 2015/11/20 19:47, Mathieu Weill wrote:
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 <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Thanks Izumi. On 20/11/2015 12:52, Izumi Okutani wrote:
Dear all,
Thank you Mathieu for sharing the draft text. Apologies that I will not be able to join the coming ST#18 call.
These are some feedback from some within ASO in the course of discussions.
In considering options -
- We support option with no change or minimum changes. The CCWG proposal should not substantially change the GAC's role and how its advice is treated by the Board. The GAC can change its definition of consensus but this should not substantially strengthen obligations for the Board to consider the GAC advice - Clarifying ambiguity in the actual practice by putting it into the text is OK Very clear and I agree.
Matthew
With this, some expressed concerns about requiring 2/3 majority for the Board to reject GAC advice but those who expressed concerns also expressed that the text below would be OK. (Text shared by Brett)
“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, which consistent with GAC Operating Principle 47 is 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, 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 then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” This is still ongoing discussions and not an official ASO position. Overall, what I share here is a preference and not a must.
No specific comments about the % or votes. i.e., no strong opinion at this stage, including its needs of either.
Wish you all a fruitful meeting and I will follow up with notes.
Izumi
On 2015/11/20 19:47, Mathieu Weill wrote:
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 <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
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_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
-- Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology mshears@cdt.org + 44 771 247 2987 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
Many thanks for your proposal Finn. And thanks to all contributors of todays call, which was very useful in clarifying each partys 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. Mondays 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 todays 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 *****************************
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<http://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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
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 Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey 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<http://heritage.org/> From: s18-bounces@icann.org<mailto: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<mailto: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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. ________________________________ [PC1]This proposed clause reflects the GAC’s historic pattern of rendering reactive advice on matters being deliberated within or implemented by other segments of the ICANN community; e.g., the new gTLD program. The adoption of this clause would not prohibit the GAC from seeking to independently raise and provide advice on issues pertaining to matters of first impression and not at that time under community deliberation or subsequent implementation. It would, however, leave the treatment of advice originating from the GAC, and not the subject of subsequent deliberation or implementation, to the Board’s discretion. The word “deliberation” is meant to delineate that the issue on which the GAC is providing consensus advice is one of which elements outside of the community have also been actively focused within a formalized process. The word “implementation” means that the matter has moved from the deliberation stage to that of being brought into existence or subsequently maintained. This clause would not prevent the GAC from providing consensus advice on issues related to matters in which the GAC had an original interest, so long as the GAC undertook outreach to other elements of the community that persuaded them to engage in a subsequent deliberative process that could lead to the implementation of its decisions. [PC2]“Full” was deleted from Brett’s email of 11/20 but it is probably best to retain it, as it differentiates this situation from the type of less than full consensus described in the next paragraph. [PC3]Should an attempt be made to better define what a “very small minority” constitutes, or should that determination be left to the Board’s discretion? [PC4]This clause is added per Brett Schaefer’s email of 11/20/15; the language is Brett’s.
I am OK with this. ________________________________ 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/> On Nov 22, 2015, at 8:26 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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 Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: s18-bounces@icann.org<mailto: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<mailto: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<http://heritage.org/> From: s18-bounces@icann.org<mailto: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<mailto: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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. ________________________________ [PC1]This proposed clause reflects the GAC’s historic pattern of rendering reactive advice on matters being deliberated within or implemented by other segments of the ICANN community; e.g., the new gTLD program. The adoption of this clause would not prohibit the GAC from seeking to independently raise and provide advice on issues pertaining to matters of first impression and not at that time under community deliberation or subsequent implementation. It would, however, leave the treatment of advice originating from the GAC, and not the subject of subsequent deliberation or implementation, to the Board’s discretion. The word “deliberation” is meant to delineate that the issue on which the GAC is providing consensus advice is one of which elements outside of the community have also been actively focused within a formalized process. The word “implementation” means that the matter has moved from the deliberation stage to that of being brought into existence or subsequently maintained. This clause would not prevent the GAC from providing consensus advice on issues related to matters in which the GAC had an original interest, so long as the GAC undertook outreach to other elements of the community that persuaded them to engage in a subsequent deliberative process that could lead to the implementation of its decisions. [PC2]“Full” was deleted from Brett’s email of 11/20 but it is probably best to retain it, as it differentiates this situation from the type of less than full consensus described in the next paragraph. [PC3]Should an attempt be made to better define what a “very small minority” constitutes, or should that determination be left to the Board’s discretion? [PC4]This clause is added per Brett Schaefer’s email of 11/20/15; the language is Brett’s. <ST 18 European GAC Members Proposal-PC edit.docx>
Dear all, I feel we should not open up new and additional issues at this very late stage, which do not have a direct relation with the issues we have been discussing under the heading of ST18. To the contrary, I think we should now concentrate on the options on the table, i.e. Mark's latest proposal, Julia's original proposal and Brett's last amendment suggestion. Best regards Rafael De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Phil Corwin Enviado el: lunes, 23 de noviembre de 2015 3:26 Para: Schaefer, Brett; Mathieu Weill; Finn Petersen; s18@icann.org Asunto: Re: [S18] Document for ST18 call Nov 20 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 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 Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: s18-bounces@icann.org<mailto: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<mailto: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<http://heritage.org/> From: s18-bounces@icann.org<mailto: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<mailto: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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. ________________________________ This proposed clause reflects the GAC’s historic pattern of rendering reactive advice on matters being deliberated within or implemented by other segments of the ICANN community; e.g., the new gTLD program. The adoption of this clause would not prohibit the GAC from seeking to independently raise and provide advice on issues pertaining to matters of first impression and not at that time under community deliberation or subsequent implementation. It would, however, leave the treatment of advice originating from the GAC, and not the subject of subsequent deliberation or implementation, to the Board’s discretion. The word “deliberation” is meant to delineate that the issue on which the GAC is providing consensus advice is one of which elements outside of the community have also been actively focused within a formalized process. The word “implementation” means that the matter has moved from the deliberation stage to that of being brought into existence or subsequently maintained. This clause would not prevent the GAC from providing consensus advice on issues related to matters in which the GAC had an original interest, so long as the GAC undertook outreach to other elements of the community that persuaded them to engage in a subsequent deliberative process that could lead to the implementation of its decisions. “Full” was deleted from Brett’s email of 11/20 but it is probably best to retain it, as it differentiates this situation from the type of less than full consensus described in the next paragraph. Should an attempt be made to better define what a “very small minority” constitutes, or should that determination be left to the Board’s discretion? This clause is added per Brett Schaefer’s email of 11/20/15; the language is Brett’s.
Phil's second, third, and forth comments are just clarifications - helpful ones in my view. The suggestion of substance is the first comment, which I would think we could discuss on this mornings call. ________________________________ 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/> On Nov 23, 2015, at 5:59 AM, Perez Galindo, Rafael <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>> wrote: Dear all, I feel we should not open up new and additional issues at this very late stage, which do not have a direct relation with the issues we have been discussing under the heading of ST18. To the contrary, I think we should now concentrate on the options on the table, i.e. Mark's latest proposal, Julia's original proposal and Brett's last amendment suggestion. Best regards Rafael De: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] En nombre de Phil Corwin Enviado el: lunes, 23 de noviembre de 2015 3:26 Para: Schaefer, Brett; Mathieu Weill; Finn Petersen; s18@icann.org<mailto:s18@icann.org> Asunto: Re: [S18] Document for ST18 call Nov 20 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 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 Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: s18-bounces@icann.org<mailto: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<mailto: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<http://heritage.org/> From: s18-bounces@icann.org<mailto: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<mailto: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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. ________________________________ This proposed clause reflects the GAC’s historic pattern of rendering reactive advice on matters being deliberated within or implemented by other segments of the ICANN community; e.g., the new gTLD program. The adoption of this clause would not prohibit the GAC from seeking to independently raise and provide advice on issues pertaining to matters of first impression and not at that time under community deliberation or subsequent implementation. It would, however, leave the treatment of advice originating from the GAC, and not the subject of subsequent deliberation or implementation, to the Board’s discretion. The word “deliberation” is meant to delineate that the issue on which the GAC is providing consensus advice is one of which elements outside of the community have also been actively focused within a formalized process. The word “implementation” means that the matter has moved from the deliberation stage to that of being brought into existence or subsequently maintained. This clause would not prevent the GAC from providing consensus advice on issues related to matters in which the GAC had an original interest, so long as the GAC undertook outreach to other elements of the community that persuaded them to engage in a subsequent deliberative process that could lead to the implementation of its decisions. “Full” was deleted from Brett’s email of 11/20 but it is probably best to retain it, as it differentiates this situation from the type of less than full consensus described in the next paragraph. Should an attempt be made to better define what a “very small minority” constitutes, or should that determination be left to the Board’s discretion? This clause is added per Brett Schaefer’s email of 11/20/15; the language is Brett’s.
As Brett correctly observed, I have only proposed a single substantive change, the addition of the phrase “issues related to matters under deliberation or implementation within the ICANN community” in the first paragraph. This is not a "new and additional issue" -- I have raised it during both of the past two S18 calls, and the issue is whether the insertion of the 2/3 Board voting threshold for rejection of GAC advice creates the possibility of the GAC originating, and moving on its own, policy advice -- and whether that in turn creates the possibility of creating a governmental-controlled alternative to the standard PDP process for the development and acceptance of DNS policy. And that question has "a direct relation with the issues we have been discussing under the heading of ST18". This language asks the GAC to concede nothing in the context of its past practice of providing advice on matters already the subject of deliberation or implementation by the ICANN community, and is intended to facilitate the acceptance of the 2/3 voting threshold requirement by NTIA and especially the U.S. Congress. The issue of potential governmental control of ICANN has greater potential than any other to call the transition plan into question on Capitol Hill. Let us not forget the a Board initiative to formalize such a 2/3 voting threshold was roundly rejected by the ICANN community earlier this year. Let's also not forget that Fadi was questioned on this exact issue when he testified before Congress and his response was that it was no longer under consideration. So the GAC's late initiative to insert such a 2/3 rejection requirement will definitely be noted by Congress (and Fadi just told us on the SO/AC call this morning that, according to NTIA, the DOTCOM Act is likely to pass the Senate in December and formalize Congress' review role). And Congress will consider whether this presents a concern in the context of a final accountability plan that provides the GAC with a discretionary role to vote for or object to an accountability escalation process that relies upon the threat of individual or wholesale Board removal for enforcement purposes -- which in turn raises the possibility of the GAC leveraging that role for acceptance of its advice by the Board. Summing up, the proposed language does not restrict the GAC in its traditional advisory role and would, in my opinion, substantially increase the probability of the 2/3 voting threshold being inserted into the Bylaws by the community and, sequentially, by the US government. It should be viewed as a friendly amendment relating to a very important issue directly related to ST18. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Sent: Monday, November 23, 2015 7:16 AM To: Perez Galindo, Rafael Cc: Phil Corwin; Mathieu Weill; Finn Petersen; s18@icann.org Subject: Re: Document for ST18 call Nov 20 Phil's second, third, and forth comments are just clarifications - helpful ones in my view. The suggestion of substance is the first comment, which I would think we could discuss on this mornings call. ________________________________ 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/> On Nov 23, 2015, at 5:59 AM, Perez Galindo, Rafael <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>> wrote: Dear all, I feel we should not open up new and additional issues at this very late stage, which do not have a direct relation with the issues we have been discussing under the heading of ST18. To the contrary, I think we should now concentrate on the options on the table, i.e. Mark's latest proposal, Julia's original proposal and Brett's last amendment suggestion. Best regards Rafael De: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] En nombre de Phil Corwin Enviado el: lunes, 23 de noviembre de 2015 3:26 Para: Schaefer, Brett; Mathieu Weill; Finn Petersen; s18@icann.org<mailto:s18@icann.org> Asunto: Re: [S18] Document for ST18 call Nov 20 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 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 Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: s18-bounces@icann.org<mailto: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<mailto: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<http://heritage.org/> From: s18-bounces@icann.org<mailto: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<mailto: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<mailto: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> [mailto:s18-bounces@icann.org] På vegne af Mathieu Weill Sendt: 20. november 2015 11:47 Til: s18@icann.org<mailto: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<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. ________________________________ This proposed clause reflects the GAC’s historic pattern of rendering reactive advice on matters being deliberated within or implemented by other segments of the ICANN community; e.g., the new gTLD program. The adoption of this clause would not prohibit the GAC from seeking to independently raise and provide advice on issues pertaining to matters of first impression and not at that time under community deliberation or subsequent implementation. It would, however, leave the treatment of advice originating from the GAC, and not the subject of subsequent deliberation or implementation, to the Board’s discretion. The word “deliberation” is meant to delineate that the issue on which the GAC is providing consensus advice is one of which elements outside of the community have also been actively focused within a formalized process. The word “implementation” means that the matter has moved from the deliberation stage to that of being brought into existence or subsequently maintained. This clause would not prevent the GAC from providing consensus advice on issues related to matters in which the GAC had an original interest, so long as the GAC undertook outreach to other elements of the community that persuaded them to engage in a subsequent deliberative process that could lead to the implementation of its decisions. “Full” was deleted from Brett’s email of 11/20 but it is probably best to retain it, as it differentiates this situation from the type of less than full consensus described in the next paragraph. Should an attempt be made to better define what a “very small minority” constitutes, or should that determination be left to the Board’s discretion? This clause is added per Brett Schaefer’s email of 11/20/15; the language is Brett’s.
participants (8)
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Finn Petersen -
Izumi Okutani -
Mathieu Weill -
Matthew Shears -
Paul Rosenzweig -
Perez Galindo, Rafael -
Phil Corwin -
Schaefer, Brett