[CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?

[Schaefer, Brett]

Greg,

Agree entirely. This is not what I understood to be the intent of the ST 18 language.

The more Paul and I have gone over this, the more concerned we have become over the language. We have expressed similar concerns in our public comment along with suggestions for alternative text. We need to fix this before moving forward.

I fully admit to bearing part of the blame in this – we should have thought this through during the ST 18 discussions. But then we were under an enormous pressure to meet the deadline and text was being proposed on the fly during the Adobe chat sessions. The past few weeks have finally provided some time to reflect and think things through. That reflection should be taken into account.

Best,

Brett

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Friday, December 18, 2015 12:52 AM
To: Alan Greenberg
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?

Alan,

Nowhere does it say that there needs to be a "formal decision."  If the existing Bylaws required a vote, or even a "formal decision," before entering into the "mutually acceptable solution" process, the Bylaws would say so.  Instead, a more flexible term was chosen -- "determines to take an action."  Assuming competent lawyers, these language choices are meaningful and deliberate.  Elsewhere, the Bylaws clearly state when there are votes required (some variation of the word "vote" is used ~200 times in the ICANN Bylaws).  "Determines to take an action" is a unique phrase within the bylaws and virtually unique outside of it -- indeed, all but one Google result when searching on that term is a reference to this particular Bylaw.  It's fairly clear to me that something less formal than a vote was intended by choosing this unique phrase.

It's my understanding that this distinction is carried out in the Board's actual practices, which have utilized the flexibility offered by this language. As presently drafted, the Board is able to identify a situation where it appears that they are going to take an action that would be inconsistent with GAC Advice; at that point, they would approach the GAC, tell them why and enter into the "mutually acceptable solution" process -- without requiring a formal vote of the Board.  This gives the Board more flexibility and leeway to work with the GAC, and it's my understanding that the Board has in fact worked in this manner. The CCWG proposal would take away that flexibility and mandate a formal vote of the Board, requiring the Board to take an adversarial stance with the GAC.  [Choosng to use the flatly negative word "reject" instead of the more nuanced phrase "take an action that is not consistent with" is just the icing on the cake.]

There is another issue raised by this new language.  With this revision, it is far from clear what the status of GAC Advice that not been rejected by a 2/3 vote?  If the Board takes a vote, but the rejection fails to pass, is the GAC Advice now "accepted" (possibly by a vote of 1/3+1) and binding on ICANN?  What about GAC Advice on which no vote has been taken -- is that Advice "accepted" and binding on ICANN and, if so, when?  [Compare this to the Community's right to reject a standard bylaws change -- if the community does not elect to do so, or attempts to do so and fails, that bylaw clearly become binding upon ICANN.]

The combination of a 2/3 threshold and a mandatory vote to reject GAC Advice creates a presumption that GAC advice will be accepted.  This presumption is novel and clearly elevates GAC Advice to a new level of deference within the ICANN process.

Although none of this is explicitly stated in the detailed explanation in Annex 11, the more I consider this and the more people I talk to, the more convinced I am that what I've laid out above is exactly what was intended by some of those involved in the drafting process for the Bylaw revision, and the rest of us just didn't see it at the time.  Since it's not brought out in the CCWG's explanation, this fundamental change can "fly under the radar" until the Proposal is approved.

I don't believe that this was the intention of the CCWG.  If it's not the intention of the CCWG, then my alternative wording would remove this concern.  If this is in fact the intention of the CCWG then I think it needs to be part of the explanation set forth in the proposal, so that the intent and effect are clear, and any reader can clearly understand what we have wrought.

Finally, I have to say that this is not an "implementation level" concern.  This is, if you will, a "policy level" concern.  If this gets baked into the accepted proposal, then the implementers will essentially be bound to carry this out in the implementation (i.e., the drafting of the "real" Bylaw language).  Any later attempt to change a concept stated in the accepted and transmitted final proposal will face a very high set of hurdles, at best.  Now is the time to deal with this.

Greg



On Thu, Dec 17, 2015 at 3:22 PM, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>> wrote:
Greg, you say that the current Bylaws do not reference voting. The current wording ( https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j<https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j>) is "In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice..."

How else is the Board able to formally decide on anything other than by voting?

Alan

At 16/12/2015 03:09 AM, Greg Shatan wrote:

All,

In reviewing the Third Draft Proposal, concerns have been raised within my constituency that the proposed Bylaw does more than replace an existing "majority" threshold with a new "2/3" threshold.  The concern is that the proposed Bylaw introduces a "mandatory vote" by the Board in order to reject GAC Advice where the Bylaws do not currently require a Board vote.  Further, there appears to be a concern that, if the Board does not take a vote and affirmatively reject a piece of GAC advice, then that GAC advice becomes binding on ICANN.

These concerns stem from a reading of the draft Bylaw (new language in red):

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 Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds of the Board, and tThe 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.

​The current language of the Bylaw makes no reference to voting, only to the far more ambiguous "determines to take an action."  As such, adding a reference to a vote can be seen to add a new element (aside from the introduction of a 2/3 threshold): the element of a bylaws-mandated vote.  Similarly, the statement that GAC Advice can only be rejected by a vote of the Board can be read to state that if no such vote is taken (or if such vote is taken and fails) that the GAC Advice is then something ICANN is bound to follow.

I don't think either of these things were intended by the CCWG.  Whether they are misreadings of our draft language or unintended consequences of the drafting, this concern is troubling.  If it is the intent of some of those drafting this language to force a vote where none is currently required, then that is even more troubling.

I would appreciate some clarification on these matters that I can bring back to my group.

I would also appreciate the CCWG considering a change in language to remove this ambiguity which is currently causing great consternation in my group.

I suggest the language below.  This m
ore closely track
​s​
the language of the existing bylaw and avoid the use of the term "vote," with its potential unintended consequences:
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.
​
If the Board
​
determines to take an action that is not consistent with
Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection,
​
​such determination must be supported by
two-thirds of the Board,
and 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.
​


I would appreciate your thoughts on this point and the revised language.  Thank you.

Greg

________________________________
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/>
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-Community at icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151218/2db426b9/attachment-0001.html>