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

[Greg Shatan]

Kavouss,

Thank you for your email.  Perhaps I did not make myself clear enough.  The
language you are responding to is not what I propose; rather it is language
that I believe more clearly expresses the intentions of some to force the
board into voting and into "rejecting" GAC advice.  I am not one who shares
those intentions and I think many others who initially supported the Third
Draft language do not share this intention either.  This "disconnect" is
the reason I started this thread, and I think that more participants are
now seeing that the Third Draft language does more than merely raise a
threshold from majority to 2/3.

To be more specific, I am not suggesting that "determined" be replaced by
"vote," and such an outcome would be the exact opposite of what I contend
should happen here.  So, I am sorry that your kind offer will not end this
lengthy discussion.

I am of course fine with maintaining the obligation of the Board to inform
the GAC when it determines that it will take an action inconsistent with
GAC advice -- which is not the same as "rejecting" GAC advice, by the way.

The point is that the Board's "determination to take an action inconsistent
with GAC advice" may not always take the form of a vote, and thus may not
always produce the type of public notice that a Board vote will trigger.

However, it seems that some in the CCWG want to force the Board into voting
on GAC advice, to making any ICANN action inconsistent with GAC advice a
"rejection" of the GAC, and possibly making it so that all GAC advice is
accepted unless it is rejected by Board vote.  I don't think is a consensus
position of the CCWG, but right now we have language in the Third Draft
proposal which can be read to do all these things.  And that is why this
thread is needed.

Greg

On Sat, Dec 19, 2015 at 3:51 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Grec
> I have followed this lengthy and inefficient exchange of e- mails since
> the last 10 days.
> While I am not comfortable to see such an insistence,I agree to simply
> replace " determined" by vote and end this lengthy discussion.
> I strongly disagree not to refer to the need that after non acceptance of
> the GAC advice , The Board shall so inform the GAC ( The second part of
> your last message   )
> In fact the obligation to inform the GAC. that its Advice was rejected is
> fundamental in order that both partied get into  negotiations to find a
> satisfactory solution.
> Publicly available BORAD ,s decision is not sufficient to trigger the
>  negotiation between Board and GAC
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 18 Dec 2015, at 19:59, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Mathieu,
>
> I think Steve has now answered you more authoritatively than I could.
> Other current and former Board members could provide their perspectives as
> well.
>
> This type of flexibility was clearly contemplated when the [current]
> Bylaws were drafted.  Consider this sentence: " 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 this "determination" was intended to only be by formal vote, why not
> say so?  The Bylaws are not shy about using the words "vote" and "voting."
>  Why choose this unique construction in this one place in all the Bylaws if
> all you meant was "vote"?
>
> If all that was contemplated by a vote, why have a separate requirement to
> inform and to state reasons?  A formal vote will always be publicly
> reported, supported by a motion and rationale, so information/reasons would
> be taken care of by ordinary procedures?  To my mind, this is stated so
> that the GAC is kept informed in the absence of a formal vote (or more to
> the point, as the Board sees that it is heading toward a negative vote and
> wants to engage in the "mutually acceptable solution" process.
>
> For the moment, I won't touch the difference between "rejection" and
> "determining to take an action not consistent" with something, but that is
> a real distinction.
>
> If we think this has been and should be an all-voting, all-the-time
> process (and I think Steve's email shows us otherwise), perhaps the Bylaw
> should (or would) look like this:
>
> 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 votes to reject
> Governmental Advisory Committee advice, it shall provide the Committee the
> motion and rationale stating the reasons why it decided to reject that
> advice. 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.
>
> But it doesn't.
>
> I'm sure you don't like finding a hole in the boat, and frankly I don't
> like it either.  But boats do one thing when holes are plugged and another
> thing when holes are neglected.  "Done is better than perfect" is a useful
> mantra.  But so is "Sin in haste, repent at leisure."
>
> Greg
>
> On Fri, 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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