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

Christopher Wilkinson lists at christopherwilkinson.eu
Fri Dec 18 18:59:43 UTC 2015


>  it’s sensible and constructive to share that with the affected parties before going through the formal process.

+1 QED

CW


On 18 Dec 2015, at 18:42, Steve Crocker <steve.crocker at icann.org> wrote:

> If memory serves me correctly, the ICANN Board has formally rejected GAC advice only twice, and there may be some ambiguity about even those occasions.
> 
> In 2008 the Board voted to move forward with the new gTLD program.  I understand the GAC was not entirely in favor of this move, but I don’t know for certain whether the GAC had formally advised against it or whether their communications on that matter fell short of being formal advice.  In any case, the Board vote was overwhelming and taken only after considerable effort across the entire community had proceeded for some years.
> 
> In 2011, the first IRP action returned a decision that said the Board’s prior rejection of the .xxx application was incorrect.  The GAC was opposed to the .xxx and the Board had to decide whether to accept or reject the IRP ruling.  The entire history of the .xxx application was fairly messy, in my opinion, and there weren’t any clear, bright lines.  I was vice chair of the Board at that time and found myself with the deciding vote.  Although there were criticisms of the quality of the IRP ruling and although IRP rulings were not binding on the Board, I felt it would be a poor precedent to reject the very first IRP ruling and I voted to approve the .xxx application.
> 
> We’re now headed toward binding IRP rulings and formal requirements for a 2/3 vote of the Board to reject GAC advice.  Personally, I don’t have any trouble with either, but there will likely be occasions where the results are debatable.  And, perhaps more to the point, whenever it’s possible to anticipate a conflict that might result in a formal rejection, informal consultation ahead of time is always advisable and often useful.  If discussion within the Board indicates what the outcome of a formal vote will be, it’s sensible and constructive to share that with the affected parties before going through the formal process.
> 
> Steve



Begin forwarded message:

> From: Christopher Wilkinson <lists at christopherwilkinson.eu>
> Subject: Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
> Date: 18 Dec 2015 19:01:58 GMT+01:00
> To: "accountability-cross-community at icann.org Accountability" <accountability-cross-community at icann.org>
> 
> Good evening:
> 
> >  	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.
> 
> Why?
> 
> More generally, this is an extraordinary debate among folk - whatever all their other merits - that have never been members of the GAC and have never been appointed to the ICANN Board. 
> 
> Should the formal structures become so constraining - as a few CCWG participants appear to desire - then all that will have been achieved will be to thrust any serious issues between the Community, the Board and the GAC out of the designated procedures and into purely informal contexts. That would inevitably result in a serious loss of transparency, which was however the primary objective in the first place. There is a word for that.
> 
> Hey, Guys, let's get real … 
> 
> CW
> 
> 
> 
> 
> 
> On 18 Dec 2015, at 17:29, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 
> 
> _______________________________________________
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> 
> 
> 
> 
> 
> On Dec 18, 2015, at 12:01 PM, Mathieu Weill <mathieu.weill at afnic.fr> wrote:
> 
>> Greg, All,
>>  
>> You are saying :
>> « 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. “
>>  
>> I must confess I do not understand how a Board in general, and Icann’s in particular, can act through anything other than a voting decision (even if it can be a consensus decision, it’s still a type of vote) ?
>>  
>> This makes this discussion very hard to follow for me.
>>  
>> Thanks for helping me out here.
>> Mathieu
>>  
>> De : accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] De la part de Greg Shatan
>> Envoyé : vendredi 18 décembre 2015 17:30
>> À : Steve DelBianco
>> Cc : accountability-cross-community at icann.org
>> Objet : Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
>>  
>> 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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