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

[Greg Shatan]

Steve,

I know that's all that we (at least, you and I) wanted the addition of that
one sentence to accomplish.  Initially, I was convinced that is all that
was accomplished.  The more I think about this and discuss it, the less
convinced I am.  Actually, I'm fairly we have accomplished, intentionally
or not (or intentionally by some and not by others), quite a bit more than
that by adding that sentence. (Actually we added a clause, not a sentence,
and that distinction is important.)

Your walk-through includes one critical assumption about current Board
practice that I don't believe is always supported by the facts.  You say "That
decision is based on the board having a simple majority voting not to
follow GAC advice. "  It's my understanding (after looking into this) that
the Board does not always take a formal vote when it "determines to take an
action that is not consistent with" GAC advice.  Please see my email to
Alan Greenberg last night where I run through this in detail, so I don't
make this email longer than it has to be.

In our haste and desire for finality, it is easy to assume that "determines
to take an action" is the same as "voting" and that "an action that is not
consistent with" GAC advice is the same as "rejecting" GAC advice.  These
are bad assumptions (again see my email to Alan for more detail).

I know that the "draft Bylaws" are conceptual in nature (a point I've
expressed myself many times), but words still matter.  Getting the concept
right is what matters at this stage.  And I don't think we got it right --
unless we intended to force the Board to vote every time it decides to take
an action that is not consistent with GAC advice and we intended to frame
that vote as a "rejection" (and we know how much everybody loves
rejection).  If that was our intention, we need to state it clearly and
expressly and agree that is what we're doing.  If that was not our
intention, we need to change the language of the draft bylaw.  We can't
count on drafting notes.  This will get too much attention as a series of
new and/or higher hurdles to doing things any way other than the GAC way.

Finally, the reason it's important that this is a clause not a sentence:
 our new language is inserted as a predicate clause to the "mutually
acceptable solution" process.  As a result, you can't get to that process
unless you "reject" the GAC first. In other words, the Board loses the
flexibility it currently has (and uses) to engage the GAC in that process
without a formal Board vote.  This was not intended and must be corrected.

Greg



On Fri, Dec 18, 2015 at 10:28 AM, Steve DelBianco <sdelbianco at netchoice.org>
wrote:

> The current bylaws obligate ICANN to try and find a mutually acceptable
> solution if the board decides not to follow GAC advice. That decision is
> based on the board having a simple majority voting not to follow GAC
> advice.  Today, the board almost always attempts to implement GAC advice
> and I’m not aware of instances where the board took a vote to either
> approve or reject GAC advice.
>
> Our Recommendation #11 changed this one sentence in the bylaws regarding
> board obligations with respect to GAC 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.
>>
>> Our Recommendation #11 does two things by changing that one sentence.
>
> First, we narrow the board’s obligations only for GAC advice that was
> supported without a formal objection by any GAC member, which is how the
> GAC makes decisions now.
>
> Second, we require our board to have 2/3 vote to reject that kind of GAC
> advice. 2/3 of 16 directors is 11 votes, whereas a majority is 9 votes.
>
> If GAC advice came over with any formal objections by GAC members, the
> ICANN board could reject that advice with a simple majority, and would have
> no obligation to try and find a mutually acceptable solution if it did
> reject that GAC advice.
>
>
> From: <accountability-cross-community-bounces at icann.org> on behalf of
> Keith Drazek <kdrazek at verisign.com>
> Date: Friday, December 18, 2015 at 10:15 AM
> To: Greg Shatan <gregshatanipc at gmail.com>
> Cc: "accountability-cross-community at icann.org" <
> 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?
>
> Greg raises very important points. Neither a "mandatory vote" nor a
> "presumption of acceptance" was intended. The only change proposed was to
> raise the threshold, under current practice, from simple majority to 2/3 if
> a vote was ever required at the last stage of the Board's consideration of
> GAC Advice. Nothing more. This should be made clear to the bylaw drafters.
>
> Regards,
> Keith
>
> On Dec 18, 2015, at 12:53 AM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> 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>
> 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) 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
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