Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didnt need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
The formulation that government GAV advice can only be rejected by a 2/3 Board vote against it implies that it takes effect in the absence of such vote. That in turn implies that GAC advice could take effect even if a majority, but not 2/3, of the Board opposed it. Combined with discretionary GAC ability to vote for or object to a community power escalation process that depends on Board member removal for enforcement, this gives rise to potential scenarios in which Board members reach an understanding not to object to GAC advice in exchange for GAC agreement not to vote for, or to object to, exercise of community power. That is an entirely plausible future event if this path is taken. 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 Sent from my iPad
On Nov 17, 2015, at 9:57 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Agree, this is an expansion of government authority versus the status quo. When combined with the possible GAC participation in the Empowered Community, a substantial and objectionable increase. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Tuesday, November 17, 2015 9:35 AM To: 'Julia Katja Wolman'; s18@icann.org; Jorge.Cancio@bakom.admin.ch; 'Perez Galindo, Rafael'; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didn’t need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Dear Paul and all, Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase". And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal. Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. Hope these considerations are helpful Regards Jorge -----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Dear Jorge You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection). Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul and all, Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase". And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal. Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. Hope these considerations are helpful Regards Jorge -----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: * Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: * For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; jukacz@erst.dk<mailto:jukacz@erst.dk>; s18@icann.org<mailto:s18@icann.org>; RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk<mailto:jukacz@erst.dk>>; s18@icann.org<mailto:s18@icann.org>; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org<mailto:s18@icann.org>>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Cc: s18@icann.org<mailto:s18@icann.org> Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> CC: s18@icann.org<mailto:s18@icann.org> Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org<mailto:S18@icann.org<mailto:S18@icann.org>> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
Dear Brett I really have to disagree with you. Julia's proposal, which I and many others support, is a very carefully crafted compromise proposal. Wordings can always be improved, but there is no rationale to impose unanimity for the GAC, especially considering that we (Julia and others) are committing to a very high threshold, well beyond that applicable to GNSO or ccNSO supermajorities. Imposing unanimity is imposing the real danger of capture. Let us find the narrow path where the language assures colleagues and addresses concerns, but does not impose a danger of capture by a single delegate or a very tiny minority. Regards Jorge Von: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Gesendet: Dienstag, 17. November 2015 19:58 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: s18@icann.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: 2. For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org<mailto:s18@icann.org> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; jukacz@erst.dk<mailto:jukacz@erst.dk>; s18@icann.org<mailto:s18@icann.org>; RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk<mailto:jukacz@erst.dk>>; s18@icann.org<mailto:s18@icann.org>; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org<mailto:s18@icann.org>>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Cc: s18@icann.org<mailto:s18@icann.org> Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> CC: s18@icann.org<mailto:s18@icann.org> Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org%3cmailto:sdelbianco@netchoice.org>>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/<http://www.NetChoice.org%3chttp:/www.netchoice.org/>> and http://blog.netchoice.org<http://blog.netchoice.org/<http://blog.netchoice.org%3chttp:/blog.netchoice.org/>> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org<mailto:S18@icann.org%3cmailto:S18@icann.org>> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
Jorge, What capture are you talking about? Even under current procedures outlined by OP 47 the GAC can forward advice to the Board if some countries oppose it. From my perspective, Julia’s proposal is an attempt to reconcile between internal GAC positions in response to Pedro’s earlier proposal. Our group should be seeking a compromise between that proposal and those in the community concerned about giving the GAC greater authority in this regard. I have proposed such a compromise – even though I am concerned that it gives too much away – but have gotten no response: · “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, defined as the absence of any formal objection, may only be rejected by a vote of more than two-thirds (2/3) of the Board. Any GAC advice approved by a GAC consensus with objection(s) 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 enshrines the GAC’s ability to send advice forward even if it lacks full consensus (thus avoiding capture) but says that the 2/3rds threshold only applies if the advice is supported by the full consensus. It even obligates the Board to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution” for both types of advice. Thanks, 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: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 2:02 PM To: Schaefer, Brett; Paul Rosenzweig Cc: s18@icann.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Brett I really have to disagree with you. Julia’s proposal, which I and many others support, is a very carefully crafted compromise proposal. Wordings can always be improved, but there is no rationale to impose unanimity for the GAC, especially considering that we (Julia and others) are committing to a very high threshold, well beyond that applicable to GNSO or ccNSO supermajorities. Imposing unanimity is imposing the real danger of capture. Let us find the narrow path where the language assures colleagues and addresses concerns, but does not impose a danger of capture by a single delegate or a very tiny minority. Regards Jorge Von: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Gesendet: Dienstag, 17. November 2015 19:58 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: s18@icann.org<mailto:s18@icann.org> Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark’s proposal is: 2. For purposes of this section, GAC “consensus” does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that “consensus” does not necessarily mean “unanimity” or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org<mailto:s18@icann.org> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; jukacz@erst.dk<mailto:jukacz@erst.dk>; s18@icann.org<mailto:s18@icann.org>; RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk<mailto:jukacz@erst.dk>>; s18@icann.org<mailto:s18@icann.org>; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org<mailto:s18@icann.org>>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es<mailto:RPEREZGA@minetur.es>>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> Cc: s18@icann.org<mailto:s18@icann.org> Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org<mailto:s18-bounces@icann.org> [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> CC: s18@icann.org<mailto:s18@icann.org> Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org%3cmailto:sdelbianco@netchoice.org>>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/<http://www.NetChoice.org%3chttp:/www.netchoice.org/>> and http://blog.netchoice.org<http://blog.netchoice.org/<http://blog.netchoice.org%3chttp:/blog.netchoice.org/>> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org<mailto:S18@icann.org%3cmailto:S18@icann.org>> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18
Dear Brett, For the sake of clarity, Brazil's proposal never suggested that the "Board must accept as a consensus position whatever GAC says". It never suggested changes to Item 2.1.k of Article XI of the bylaws which states that "If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed[...] " Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] Em nome de Schaefer, Brett Enviada em: terça-feira, 17 de novembro de 2015 16:58 Para: Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Assunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: 2. For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Pedro, I was referring to this, " In this context, each Advisory Committee has the right to determine its particular definition of consensus." I agree with this self-determination in the GAC, I just do not agree that the Board should be similarly bound. 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 -----Original Message----- From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 17, 2015 2:33 PM To: Schaefer, Brett; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Subject: RES: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Brett, For the sake of clarity, Brazil's proposal never suggested that the "Board must accept as a consensus position whatever GAC says". It never suggested changes to Item 2.1.k of Article XI of the bylaws which states that "If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed[...] " Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] Em nome de Schaefer, Brett Enviada em: terça-feira, 17 de novembro de 2015 16:58 Para: Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Assunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: 2. For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Agreed. What if the GAC in the future should adopt the definition of consensus used by GNSO Council, which is 2/3? That would mean that the Board could be placed in the position of choosing between significant groups of sovereign nations who were unable to reach a common position on an issue. The Board should be able to take that into account, which means not having Bylaws that in effect enable the majority GAC position unless the Board can muster a 2/3 vote to reject it. And btw, how long does the Board have to vote on the GAC consensus advice? If it is unlimited then the Board could defeat the intent of the proposed Bylaws change by simply never bringing the matter up for a vote. But if it is time limited then the GAC advice would automatically take effect at a time certain unless the Board has mustered 2/3 opposition. And in either scenario, if the GAC advice pertains to contracted parties does it become Consensus Policy -- is the GAC to become an alternate route to avoid/route around a PDP? And if it pertains to other matters how is it to be memorialized -- as a Bylaws change or another route? I am not trying to raise a plethora of questions for their own sake, but believe that these need to be answered to understand how the proposed Bylaws change would be implemented and affect ICANN, contracted parties, and other Internet users. 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 "Luck is the residue of design" -- Branch Rickey ________________________________________ From: s18-bounces@icann.org [s18-bounces@icann.org] on behalf of Schaefer, Brett [Brett.Schaefer@heritage.org] Sent: Tuesday, November 17, 2015 2:36 PM To: Pedro Ivo Ferraz da Silva; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Pedro, I was referring to this, " In this context, each Advisory Committee has the right to determine its particular definition of consensus." I agree with this self-determination in the GAC, I just do not agree that the Board should be similarly bound. 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 -----Original Message----- From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 17, 2015 2:33 PM To: Schaefer, Brett; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Subject: RES: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Brett, For the sake of clarity, Brazil's proposal never suggested that the "Board must accept as a consensus position whatever GAC says". It never suggested changes to Item 2.1.k of Article XI of the bylaws which states that "If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed[...] " Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] Em nome de Schaefer, Brett Enviada em: terça-feira, 17 de novembro de 2015 16:58 Para: Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Assunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: 2. For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ 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 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date.
Dear Phil, With respect to your first question, I think that is precisely the topic that was raised by Denmark in its "footnote suggestion" where it intends to apply some boundaries to the definition of consensus. Brazil is still evaluating this suggestion, but I can mention that suggesting 2/3 majority (66%) is the same as consensus is not something we are used to. With respect to your second question, I must confess I have not understood it completely. Could you elaborate a bit more? Anyway, you may get a hint if you consider how GAC advice is currently assessed by the Board. Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: Phil Corwin [mailto:psc@vlaw-dc.com] Enviada em: terça-feira, 17 de novembro de 2015 18:05 Para: Schaefer, Brett; Pedro Ivo Ferraz da Silva; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Assunto: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal Agreed. What if the GAC in the future should adopt the definition of consensus used by GNSO Council, which is 2/3? That would mean that the Board could be placed in the position of choosing between significant groups of sovereign nations who were unable to reach a common position on an issue. The Board should be able to take that into account, which means not having Bylaws that in effect enable the majority GAC position unless the Board can muster a 2/3 vote to reject it. And btw, how long does the Board have to vote on the GAC consensus advice? If it is unlimited then the Board could defeat the intent of the proposed Bylaws change by simply never bringing the matter up for a vote. But if it is time limited then the GAC advice would automatically take effect at a time certain unless the Board has mustered 2/3 opposition. And in either scenario, if the GAC advice pertains to contracted parties does it become Consensus Policy -- is the GAC to become an alternate route to avoid/route around a PDP? And if it pertains to other matters how is it to be memorialized -- as a Bylaws change or another route? I am not trying to raise a plethora of questions for their own sake, but believe that these need to be answered to understand how the proposed Bylaws change would be implemented and affect ICANN, contracted parties, and other Internet users. 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 "Luck is the residue of design" -- Branch Rickey ________________________________________ From: s18-bounces@icann.org [s18-bounces@icann.org] on behalf of Schaefer, Brett [Brett.Schaefer@heritage.org] Sent: Tuesday, November 17, 2015 2:36 PM To: Pedro Ivo Ferraz da Silva; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Pedro, I was referring to this, " In this context, each Advisory Committee has the right to determine its particular definition of consensus." I agree with this self-determination in the GAC, I just do not agree that the Board should be similarly bound. 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 -----Original Message----- From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Tuesday, November 17, 2015 2:33 PM To: Schaefer, Brett; Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Subject: RES: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Brett, For the sake of clarity, Brazil's proposal never suggested that the "Board must accept as a consensus position whatever GAC says". It never suggested changes to Item 2.1.k of Article XI of the bylaws which states that "If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed[...] " Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 -----Mensagem original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] Em nome de Schaefer, Brett Enviada em: terça-feira, 17 de novembro de 2015 16:58 Para: Jorge.Cancio@bakom.admin.ch; Paul Rosenzweig Cc: s18@icann.org Assunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Jorge, You are proposing to enshrine a consensus requirement that is in effect no requirement at all. Brazil's proposal is: 1. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus. Denmark's proposal is: 2. For purposes of this section, GAC "consensus" does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives may be overridden. It is also understood that "consensus" does not necessarily mean "unanimity" or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus. In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is. This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns about how that could be misused in the future. I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try to reach a compromise with the GAC (although it could and likely would). As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal. 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 -----Original Message----- From: s18-bounces@icann.org [mailto:s18-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 12:04 PM To: Paul Rosenzweig Cc: s18@icann.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any real change or increase here, which has been the concern brought forward by some on this point. The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO... and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. best Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
Dear Jorge
You know the answer to "practice" but in terms of long-term legal structure its irrelevant. We are talking about the legal mandate. However, if you want to keep the current practice, I'll agree to that -- absolutely no change at all. :-). You can't cherry pick the portions you like (informal Board 2/3rd requirement) and drop the ones you don't like (GAC OP47 and formal majority rule for rejection).
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ 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 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date.
There is a big difference between an informal and discretionary Board practice and a nondiscretionary Bylaws requirement. Sent from my BlackBerry 10 smartphone. 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: Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Paul and all, Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase". And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal. Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3. Hope these considerations are helpful Regards Jorge -----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear colleagues, Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list: 1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC. As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity. 2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account. 3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed. With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account. One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold. We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise. Best, Finn and Julia -----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Let me chime in to support Jorge's remarks. In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted). Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments. Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal. Warm regards, Rafael GAC_SPAIN -----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal Dear Steve In what is the third variation different from the second? How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus? I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed). Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation. This narrow line is in my view achieved in Julia's proposal. Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin. regards Jorge Von meinem iPhone gesendet Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>: Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call. I showed the original text in column 1 of the attached 1-page document. I added three "bracketed" variations on using a footnote, per discussion on today's call: The 1st bracketed text is a close copy of Denmark's original. The 2nd bracketed text documents the GAC's present practice for consensus. The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206 <Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
Dear Phil that is exactly what is happening with the consensus requirement: what has been a voluntary practice is being embedded into the bylaws regards Jorge Von meinem iPhone gesendet
Am 17.11.2015 um 18:34 schrieb Phil Corwin <psc@vlaw-dc.com>:
There is a big difference between an informal and discretionary Board practice and a nondiscretionary Bylaws requirement.
Sent from my BlackBerry 10 smartphone.
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: Jorge.Cancio@bakom.admin.ch Sent: Tuesday, November 17, 2015 10:36 AM To: paul.rosenzweig@redbranchconsulting.com; jukacz@erst.dk; s18@icann.org; RPEREZGA@minetur.es; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul and all,
Perhaps we would benefit from information from the Board as to how they presently treat GAC consensus advice, i.e. with what thresholds do they decide in such cases in practice. Perhaps, in practice, the 2/3 threshold does not mean any substantial change or "increase".
And as to accountability measures which will be available to address and contain any hypothetical mission creep by the Board as a consequence to an hypothetical GAC advice to do so: I feel we would need to agree that the means for the community to check such hypotheticals will be increased very significantly and the IRP definitely will be strengthened by the CCWG proposal.
Apart from that I would remind colleagues that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst right now), as prerequisites for accepting the 2/3.
Hope these considerations are helpful
Regards
Jorge
-----Ursprüngliche Nachricht----- Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Dienstag, 17. November 2015 15:35 An: 'Julia Katja Wolman' <jukacz@erst.dk>; s18@icann.org; Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
I think that Julia and Finn's proposal regarding the definition of consensus is very forward going. But I do not think they are quite as successful in the context of the 2/3 vote. One of the principal conditions of the NTIA was to avoid having it's oversight replaced by an accountability mechanism with under government influence. I think that adding the 2/3 vote requirement at this point is directly contrary to that directive. Consider
Under current practice GAC consensus advice is provided without formal objection and the Board may rejected by majority vote. The possibility of government "capture" of the process is therefore dependent on unanimity among goverments and 51% of the Board. Under Julia's proposal that will be reduced -- the government position now would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board. No colorable argument can be made that this is not an increase in government influence and that, in turn, is contrary to the broad principles laid out by NTIA
Finally, I would have thought it didn't need saying, but to respond to the "changed circumstance" point the argument Julia makes about a "narrow Mission statement" is fair. But that limitation is, I think, not any stronger than the current weak NTIA oversight -- it is intended as a replacement and is not likely to be a real enhancement of restraint. In that situation, again, it seems to me that adding more GAC authority when other accountability measures are not getting stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Julia Katja Wolman [mailto:jukacz@erst.dk] Sent: Tuesday, November 17, 2015 8:43 AM To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch' <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael' <RPEREZGA@minetur.es>; sdelbianco@netchoice.org Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear colleagues,
Adding to Jorge and Rafael's comments, here are a few remarks from our side trying to address some of the comments on the ST18 list:
1) The " common ground" proposal was carefully drafted, in good faith, to address the different concerns expressed in the discussions - both in the CCWG Accountability and the GAC, including taking into account the GAC Dublin Communiqué and the elements to consider herein, which was drafted on the basis of serious discussions and concessions in the GAC.
As pointed out by Jorge and others, one element in the GAC Dublin Communiqué is the call for flexibility with regard to the ACs ability to define consensus. The language of the footnote was carefully chosen to balance the different positions. That balance, we believe, is best achieved by not positively defining what consensus is but instead describing what it is not. The wording in the proposal cautiously indemnifies the room for maneuver with regard to AC consensus decision-making but still has an inbuilt flexibility that does not constrain the AC's to unanimity.
2) Another element is to avoid that the GAC is singled out and this is reflected by making the text regarding the Boards obligation to duly taking into account advice from ACs generic. Moreover, as other colleagues pointed out on the ST 18 call yesterday, this generic text also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly into account.
3) With regard to Paul's earlier comments, the words "try", and "to seek" should be seen as equivalent and as other colleagues have pointed out we could certainly find better wording if needed.
With regard to the proposal that requires 2/3 of the Board to be against an advice in order for the Board to reject it, this has to be seen in the larger context that we are in. We are considering the future framework as a whole and there are other safeguards being introduced, including a narrow Mission Statement and a commitment for consensus in the Bylaws. This proposal also underlines the Board's commitment to take AC advice duly into account.
One could also turn the argument around. In practice the Board has rejected GAC consensus advice on the basis of consensus and as such the 2/3 requirement would "allow" that the Board could reject a consensus advice based on a 2/3 majority decision and not consensus with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
We sincerely hope that colleagues will consider this proposal in the spirit of reaching a constructive compromise.
Best,
Finn and Julia
-----Oprindelig meddelelse----- Fra: s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af Perez Galindo, Rafael Sendt: 17. november 2015 10:28 Til: Jorge.Cancio@bakom.admin.ch; sdelbianco@netchoice.org Cc: s18@icann.org Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Let me chime in to support Jorge's remarks.
In order to achieve a language that satisfies us all and complies with the GAC Dublin consensus communiqué, we have to walk a thin line between two points that should be avoided: imposition of unanimity (that could yield to capture) and possibility of majority rule (that should not be permitted).
Julia's proposal has been carefully crafted to walk that line. And let me add that it is a good faith proposal, which tries to address everyone's concerns, including the ones that originated the inclusion of this Stress Test in the first place, and which constitutes already a major concession for many governments.
Apart from needed language tweaking (such as replacing "seek" for "try to find" as Paul R. suggested), I kindly call and invite you to read Julia's proposal spirit, and reflect on whether you could live with such a common ground language, in order to put this to bed and move forward with the overall CCWG proposal.
Warm regards,
Rafael GAC_SPAIN
-----Mensaje original----- De: s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de 2015 7:00 Para: sdelbianco@netchoice.org CC: s18@icann.org Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Steve
In what is the third variation different from the second?
How would the two variations answer and adress the call for flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
I feel they do not and that the solution is not to impose one definition, but to find a narrow path between unanimity (which should not be imposed) and majority rule (which should not be allowed).
Without that narrow line, any AC to which such a definition would apply would easily be captured by one single delegate/member or a very tiny minority, without any possibility to react to such a situation.
This narrow line is in my view achieved in Julia's proposal.
Hence I urge colleagues to work on that proposal, which already channels significantly the principle of flexibility on defining consensus called by the GAC in Dublin.
regards
Jorge
Von meinem iPhone gesendet
Am 17.11.2015 um 00:37 schrieb Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>:
Mathieu asked me to document some variations on the Common Ground proposal that circulated before today's ST18 call.
I showed the original text in column 1 of the attached 1-page document.
I added three "bracketed" variations on using a footnote, per discussion on today's call:
The 1st bracketed text is a close copy of Denmark's original.
The 2nd bracketed text documents the GAC's present practice for consensus.
The 3rd bracketed text indicates GAC consensus matches whatever the UN is practicing as "consensus" at that time.
- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206
<Variations on Common Ground proposal for ST18.pdf> <Variations on Common Ground proposal for ST18.docx> _______________________________________________ S18 mailing list S18@icann.org<mailto:S18@icann.org> https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18 _______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
_______________________________________________ S18 mailing list S18@icann.org https://mm.icann.org/mailman/listinfo/s18
participants (6)
-
Jorge.Cancio＠bakom.admin.ch -
Julia Katja Wolman -
Paul Rosenzweig -
Pedro Ivo Ferraz da Silva -
Phil Corwin -
Schaefer, Brett