Rickert Language --RE: RES: RES: Slight variation on FInn's text

Nov. 23, 2015

      As I requested in the chat room on the just ended meeting, can staff please circulate the language of the Rickert alternative? Thank you.

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: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Robin Gross
Sent: Monday, November 23, 2015 9:01 AM
To: s18@icann.org
Subject: Re: [S18] RES: RES: Slight variation on FInn's text

Agree with Keith.

Robin
...
On Nov 23, 2015, at 5:58 AM, Matthew Shears <mshears@cdt.org> wrote:
+ 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
paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweigesq@redbranchconsulting.com
<mailto:paul.rosenzweigesq@redbranchconsulting.com>>
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
Skype: paul.rosenzweig1066
Link to my PGP Key
<http://www.redbranchconsulting.com/index.php?option=com_content&vi
ew=
art
icle&id=19&Itemid=9>
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/>
_______________________________________________
S18 mailing list
S18@icann.org <mailto:S18@icann.org>
https://mm.icann.org/mailman/listinfo/s18
_______________________________________________
S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18

S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18
_______________________________________________
S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18
--
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
_______________________________________________
S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18
_______________________________________________
S18 mailing list
S18@icann.org
https://mm.icann.org/mailman/listinfo/s18

Phil Corwin

tags

participants (1)