Re: [Ws2-hr] Outcomes of today’s call

Aug. 23, 2017

      Dear all,

It appears the appropriate language in the ICANN context of descriptions of consensus (or lack thereof) is specifically addressed in the CCWG-ACCT Charter.  The language I located in this regard is below.  (Will staff please correct us if this is the wrong language?)

The polling of active members is the manner suggested to assess “majority” and “minority” views.  The polling described in the Charter does not appear to include polling of Observers or public commenters.  I assume that polling applies to active members whether or not they are able to make a particular call.   Thus, whether or not Jorge or Kavouss can make the next call, there will be two ticks for “Disagree” if the poll is repeated on August 29 at the second reading of the proposed reporting language.   (In this regard, it may be appropriate for anyone who has actually been active in the group to switch his or her status out of the “Observer” category and into the “Active Members” category. If being designated an “active member” poses problems for particular governmental participants, I would appreciate being advised of those issues since the CCWG-ACCT Charter does not contemplate polling of Observers or public commenters.)

It is because of the specifications in the Charter that I disagree with the “minimum common denominator” language proposed by Jorge.  I think the language specified in the Outcome of our work has to make a reference to either “Consensus” (as described below)  or “No Consensus”.  Greg used the term “balanced consensus” and I am fine with that, though I would prefer a reference to “Consensus” with a capital “C” as defined below.  If we in fact do not have a “Majority View” and a “Minority View”, then we have “No Consensus” on the FOI-HR.   I certainly do not object to  including the words “minimum common denominator” in the Minority Statement.  I do wonder whether the Minority Statement submitted by Jorge ( and seconded by Kavouss) goes too far given the “Rules of Engagement” specified below.

[cid:image001.png@01D31C04.D9889450]

.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman@lrrc.com<mailto:AAikman@lrrc.com>

_____________________________

[cid:image004.png@01D31C10.528C57A0]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

-----Original Message-----
From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever
Sent: Wednesday, August 23, 2017 3:19 AM
To: Jorge.Cancio@bakom.admin.ch; ws2-hr@icann.org
Cc: thomas@rickert.net; thiago.jardim@itamaraty.gov.br
Subject: Re: [Ws2-hr] Outcomes of todays call

Dear Jorge,

We've had a quorum during the call. And during the call I've ask whether people agreed with the text and the way forward, people have shown screen ticks. When i asked whether people had comments or issues with the text, no one spoke up. I think this definitely constitutes a consensus on the call, and I think everyone who was on the call can confirm that.

We have followed procedure to have two readings, which allows for broad participation.

The alternative additional text you proposed was pasted in the chat and discussed on the call. This led to a discussion how such a position could be best facilitated, which led to us going back to the CCWG WS2 charter to follow the appropriate process.

We've worked together long and hard to build the consensus on the text that went into public comment, I hope we can continue to build on that.

Best,

Niels

On 08/23/2017 12:00 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote:
...
Dear Niels,
...

...
I would like to kindly request you to answer the specific issues and
...
requests made in my Email or to provide factual information that prove
...
them wrong.
...

...
Referring to a subsequent call (where, as you well know, I am not able
...
to participate) is really missing the point of all of this and a not
...
very diplomatic way of ignoring requests and proposals based on what
...
is on the record of this Subgroup.
...

...
Thanks in advance for a proper and detailed answer and regards
...

...
Jorge
...

...
-----Ursprüngliche Nachricht----- Von: Niels ten Oever
...
[mailto:lists@nielstenoever.net] Gesendet: Mittwoch, 23. August 2017
...
11:57 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>;
...
ws2-hr@icann.org<mailto:ws2-hr@icann.org> Cc: thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>;
...
mark.carvell@culture.gov.uk<mailto:mark.carvell@culture.gov.uk>; mcastanon@rree.gob.pe<mailto:mcastanon@rree.gob.pe>;
...
kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>; jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>;
...
thomas@rickert.net<mailto:thomas@rickert.net>; leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx> Betreff: Re: AW: [Ws2-hr]
...
Outcomes of todays call
...

...
Dear all,
...

...
Thank you very much for your emails and the increased interest from
...
GAC representatives in the subgroup. This is very much appreciated and
...
welcomed.
...

...
I would very much like to invite you to share your opinions and help
...
us improve the text we have in a constructive dialogue during our next
...
call on August 29 at 19:00 UTC.
...

...
Best,
...

...
Niels
...

...
On 08/23/2017 11:44 AM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote:
...
...
Dear Niels,
...
...
...
...
...
...
...
...
I have read this summary of decisions taken during the call:
...
...
...
...
...
...
...
...
/"Report and transmittal letter unanimously approved as a first
...
...
reading by the participants present with the understanding that there
...
...
will be an opportunity for participants to post a minority opinion
...
...
statement. The rapporteur will communicate this to the list and all
...
...
such minority opinion statements will be due in writing by the next
...
...
call of the sub-group if they are to be considered for inclusion in
...
...
the final report. The next call of the sub-group is scheduled for
...
...
Tuesday 29 August 1900 UTC."/
...
...
...
...
...
...
...
...
...
...
...
...
My puzzlement about the conduct of this process only has grown after
...
...
checking the "raw caption" and the chat transcript of yesterday's
...
...
call.
...
...
...
...
...
...
...
...
*1.       **On the adoption of the documents prepared by the
...
...
"drafting group" by "unanimous consent" aka "unanimously approved"
...
...
as summarized on the "outcomes"*
...
...
...
...
...
...
...
...
There is no evidence in the call captioning that all participants in
...
...
the call expressed their explicit support to the documents presented
...
...
by you. The meaning of "unanimous" requires explicit support. Besides
...
...
"unanimous consent" or "unanimous approval" are no decision-making
...
...
categories in this CCWG as far as I am aware of.
...
...
...
...
...
...
...
...
In addition, even if assuming in arguendo that there had been such an
...
...
explicit support in the call, you were aware that a number of members
...
...
and observers of this Subgroup do not agree with the documents.
...
...
Therefore there was and there is no unanimity.
...
...
...
...
...
...
...
...
è/_Hence, please correct the summary and strike out the word
...
...
"unanimous" _/
...
...
...
...
...
...
...
...
Furthermore, there is not even any instant in the call where you as
...
...
Rapporteur ask the question to the Subgroup whether they are _in
...
...
agreement_ of whether they have _no objections_ to the documents.
...
...
At most there is simply a call for "comments" on the wording of the
...
...
message to the CCWG at the beginning of the call (the end of your
...
...
first intervention).
...
...
...
...
...
...
...
...
Even though I had proposed in writing some alternative text to be
...
...
considered this was completely ignored and no discussion called on
...
...
the different alternatives. This lack of consideration as a valid
...
...
alternative questions the equanimity in the performance of the
...
...
Rapporteur role. Normally when two or more alternatives have been
...
...
presented the Rapporteur has to take a neutral approach and present
...
...
the options to the Subgroup. This was not done.
...
...
...
...
...
...
...
...
To the contrary, apparently the acceptance of the documents by
...
...
"consensus" was a foregone conclusion during all the call - the only
...
...
discussion I see is on the treatment of the predefined "minority"
...
...
opinion maintained by Thiago, Kavouss, Mark and myself.
...
...
...
...
...
...
...
...
è/T_herefore I object to the summary portion that assumes that there
...
...
was "consent". Such "consent" was not called for during the call._/
...
...
...
...
...
...
...
...
...
...
...
...
*2.       **Level of "consensus" designation. *
...
...
...
...
...
...
...
...
As said before I take issue with your apparently foregone designation
...
...
of the level of agreement within the subgroup. As Bernie mentions and
...
...
cautions you during the call there are "4 participants in 4
...
...
governments" disagreeing with the documents.
...
...
...
...
...
...
...
...
Given the lack of an explicit call for agreement or non-objection
...
...
during the call, and even assuming in arguendo such was done
...
...
implicitly, the dissenting position is in my view strong enough to
...
...
prevent a "consensus" from emerging. After all we are not counting
...
...
heads here, but also have to consider stakeholder balance and
...
...
diversity.
...
...
...
...
...
...
...
...
...
...
...
...
Needless to say this is a matter of utmost importance where process
...
...
should be absolutely transparent, fair and balanced.
...
...
...
...
...
...
...
...
I feel the actions happening during the last weeks are straying away
...
...
from these principles.
...
...
...
...
...
...
...
...
Kind regards
...
...
...
...
...
...
...
...
Jorge
...
...
...
...
...
...
...
...
...
...
...
...
*Von:*Cancio Jorge BAKOM *Gesendet:* Dienstag, 22. August 2017
...
...
22:45 *An:* ws2-hr@icann.org<mailto:ws2-hr@icann.org>; Niels ten Oever
...
...
<lists@nielstenoever.net<mailto:lists@nielstenoever.net>> *Betreff:* AW: [Ws2-hr] Outcomes of todays
...
...
call
...
...
...
...
...
...
...
...
Dear Niels,
...
...
...
...
what is "unanimous" consent? How many participants attended the call
...
...
and how many expressed such explicit support?
...
...
...
...
Or do you mean absence of objections? Of how many people on the call?
...
...
...
...
thanks
...
...
...
...
Jorge
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
---------------------------------------------------------------------
...
...
-
...
...
...
...
--
...
...
...
...
...
...
*Von:* Niels ten Oever <lists@nielstenoever.net
...
...
<mailto:lists@nielstenoever.net>> *Datum:* 22. August 2017 um
...
...
22:01:09 MESZ *An:* ws2-hr@icann.org<mailto:ws2-hr@icann.org> <mailto:ws2-hr@icann.org>
...
...
<ws2-hr@icann.org <mailto:ws2-hr@icann.org<mailto:ws2-hr@icann.org%20%3cmailto:ws2-hr@icann.org>>> *Betreff:* [Ws2-hr]
...
...
Outcomes of todays call
...
...
...
...
...
...
...
...
Human Rights sub-group participants,
...
...
...
...
On today's Human Rights call we completed the first reading of our
...
...
report back to the CCWG-Accountability-WS2 plenary with unanimous
...
...
consent (documents attached).
...
...
...
...
The sub-group does recognize that some participants who disagree with
...
...
portions of the report were unable to attend the call and therefore
...
...
as per the CCWG WS2 Charter Section V this would only constitute a
...
...
consensus decision.
...
...
...
...
It was also agreed that those participants wishing to include a
...
...
minority opinion statement in the final report should be allowed to
...
...
do so.
...
...
...
...
As such any such minority opinion statements by participants should
...
...
be available to the sub-group by Monday 28 August 23:59 UTC so they
...
...
can be considered as part of the second reading on Tuesday 29 August
...
...
19:00 UTC.
...
...
...
...
Best,
...
...
...
...
Niels
...
...
...
...
-- Niels ten Oever Head of Digital
...
...
...
...
Article 19 www.article19.org<http://www.article19.org> <http://www.article19.org>
...
...
...
...
PGP fingerprint    8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D
...
...
68E9
...
...
...

...
-- Niels ten Oever Head of Digital
...

...
Article 19 www.article19.org<http://www.article19.org>
...

...
PGP fingerprint    8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
...
--

Niels ten Oever

Head of Digital

Article 19

www.article19.org<http://www.article19.org>

PGP fingerprint    8D9F C567 BEE4 A431 56C4

                   678B 08B5 A0F2 636D 68E9 _______________________________________________

Ws2-hr mailing list

Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-hr

________________________________

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

Re: [Ws2-hr] Outcomes of today’s call

Aikman-Scalese, Anne