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

[Mark Carvell]

Dear Phil and Greg

Man of your concerns are familiar of course from last year's consultation
on proposed bylaw changes following the joint Board and GAC "BGRI"
discussions and agreement on how to implement the ATRT2 recommendations
relating to the status of GAC advice and related procedures.

Such is the extent now - much more so than in the first 15 years of ICANN -
of meaningful interaction between the public policy experts on the GAC and
the non-governmental stakeholders directly engaged in developing ICANN
policy (witness the GAC-GNSO Consultation Group), as well as between the
Board and the GAC thanks largely to implementation of the recommendations
of both ATRT reviews, thankfully we can expect substantial rejection of GAC
advice by the Board to be an extremely rare occurrence.

I would underline in this context that substantial rejection of the advice
of such a large number of governments (GAC membership is now 155) acting in
concert to safeguard the global public interest and ensure consistency with
national and international laws, would be a major, politically highly
contentious step for the Board to take. While I can understand stakeholder
anxiety about risk of extending the role of governments to the detriment of
the successfully embedded multi-stakeholder model that is ICANN, this is
why I would argue it is not unreasonable for a decision to reject public
policy interest-based advice to be accompanied by a higher threshold than
simple majority. The evaluation of that support for rejection needs to be
rigorous and a formally instituted and fully accountable voting procedure
is the most appropriate means for achieving this.

You will recall it was decided in October 2014 to put "on hold" the Board's
and the GAC's agreement to institute the two thirds threshold for rejection
in the bylaws - partly because the rationale was not well-communicated (and
as a consequence an avalanche of objections was received) but also because
the timing was wrong as IANA stewardship transition loomed large. I would
argue the timing is as right as it will ever be in the context of Stress
Test 18 and I welcomed its addition to the proposed text developed by the
sub-group.

The Board and the GAC have agreed a set procedures consistent with ATRT
recommendations for ensuring GAC advice does not fall between any cracks or
hang in limbo. See
https://www.icann.org/en/system/files/files/atrt-implementation-report-29jan13-en.pdf
<https://www.icann.org/en/system/files/files/atrt-implementation-report-29jan13-en.pdf>
 All
elements of formal GAC advice are tracked on an open register that allows
the response and follow up to be monitored
https://gacweb.icann.org/display/GACADV/GAC+Register+of+Advice   This
serves to maximise transparency of whether advice is accepted or rejected -
and if the latter, of the enactment of the procedure to negotiate and
determine if a mutually acceptable solution is possible. Default to
acceptance of advice if the Board does not respond to the GAC would not
happen.

I hope this is helpful in explaining why I believe the procedure in the
current formulation of Stress Test 18 should be supported: a) it ensures
precision, shared understanding and transparency of fully-informed Board
decisions in these rare cases when rejection is a possibility; b) it
enables the GAC to fulfil its role and responsibilities in respect of
safeguarding the global public interest; and c) it serves the best
interests of the ICANN community.

Kind regards

Mark

Mark Carvell
​United Kingdom Representative on the Governmental Advisory Committee of
ICANN ​

Global Internet Governance Policy
Department for Culture, Media and Sport
mark.carvell at culture.gov.uk
tel +44 (0) 20 7211 6062

On 18 December 2015 at 15:16, Phil Corwin <psc at vlaw-dc.com> wrote:

> As the issue of the role of the GAC within post-transition ICANN is the
> one most likely to cause Congressional (and perhaps even NTIA) opposition
> to the transition proposal -- if there is a perception of an unacceptable
> level of governmental influence over ICANN --  it is important to come to a
> common and acceptable understanding on this matter. As the ST18 subgroup
> came to an agreement only in the last few minutes of its final call it is
> perfectly understandable that there may be differing views on the text’s
> meaning.
>
>
>
> Greg raises an interesting question as to what happens if the GAC provides
> some very unpalatable advice and the Board neither advises the GAC that it
> intends to take an inconsistent action , or declines to take a formal vote
> when the GAC advice is of the consensus variety. Does the advice just wait
> in limbo indefinitely, or is there a point in time when it is deemed both
> accepted and in effect if the Board has declined to take any action?
>
>
>
> *Philip S. Corwin, Founding Principal*
>
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> *Twitter: @VlawDC*
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>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Schaefer,
> Brett
> *Sent:* Friday, December 18, 2015 9:55 AM
> *To:* Greg Shatan; 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?
>
>
>
> 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
> <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>
> 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
> ------------------------------
>
> *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
>
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