[CCWG-ACCT] Engagement request from CCWG regarding GAC decision making

[Suzanne Radell]

Dear Thomas, 

Thank you for sharing your thoughts, as well as those of some GAC members, on the issue of the CCWG’s proposed stress test related to GAC advice in your email message of March 16, 2015 to the CCWG co-chairs.  As you suggested in your message, we would like to take this opportunity to share the views of the United States government (USG) with colleagues in the GAC and the CCWG on the issue.

As a threshold matter, the USG considers the stress test both appropriate and necessary to meet the requirement that the IANA transition should not yield a government-led or an intergovernmental replacement for NTIA’s current stewardship role. While the GAC may not be directly involved in the IANA functions, its role within ICANN as a source of public policy advice that is taken into account by the ICANN Board is relevant to the interrelated process of improving ICANN’s accountability.  Improving ICANN’s accountability includes ensuring that ICANN is not susceptible to capture or undue influence by any one party or set of stakeholders, including governments.  

The USG believes that the stress test developed by the CCWG, which recommends an amendment to ICANN’s Bylaws to make clear that only consensus advice triggers a Bylaw consultation, is compatible and otherwise in line with the first Accountability and Transparency Review Team’s (ATRT 1) recommendations pertaining to the GAC.  More specifically, the U.S. considers the provision of consensus-based advice to be the GAC’s primary source of strength and credibility.   

The GAC has on occasion provided the ICANN Board with “the full range of views expressed by Members”, consistent with Principle 47 of the GAC Operating Principles.   In these cases, however, the ICANN Board does not and should not be expected to defer to such views as it does to consensus-based advice.  The USG believes that anything less than a consensus approach to the development of GAC public policy advice would diminish the value of GAC deliberations on the development of policy within the ICANN model.

Finally, we interpret the proposed stress test as capturing this important distinction in GAC advice, with an appropriate remedy in the form of a Bylaws amendment to reinforce the ICANN community’s expectation that anything less than consensus is not advice that triggers the Bylaw provisions.  Nor do we understand the stress test as in any way interfering with the GAC’s internal working methods.

Best regards, Suz

Suzanne Murray Radell
Senior Policy Advisor, NTIA/OIA
sradell at ntia.doc.gov
202-482-3167




-----Original Message-----
From: gac-bounces at gac.icann.org [mailto:gac-bounces at gac.icann.org] On Behalf Of Thomas.Schneider at bakom.admin.ch
Sent: Monday, March 16, 2015 10:57 PM
To: Mathieu.Weill at afnic.fr; rickert at anwaelte.de; leonfelipe at sanchez.mx
Cc: gac at icann.org; adam.peake at icann.org
Subject: Re: [GAC] Engagement request from CCWG regarding GAC decision making

Dear Co-Chairs of the CCWG Accountability, dear Thomas, Leon and Mathieu


Thank you for your request for input from the GAC on the prospect of a contingency induced by a potential change in the GAC's decision making procedures. And thank you all for the good exchange we had on the phone last week. 

Given the short time available, it has not been possible to undertake broad consultations with the whole GAC about this issue. In this situation, I can only give you some feedback based on my own experience as well as exchanges I had with some GAC members in the past days. I hope you will get more feedback from GAC members and observers before, during and after the f2f meeting of the CCWG in Istanbul next week.

First of all, I - like many of my colleagues - do not really see a contingency related to the GAC as a body with regard to the CCWG's Work Stream 1 (accountability related to the IANA functions). As we do not recall the GAC having had an role in the IANA stewardship function so far and as one of the conditions put forward by the NTIA is that no other single country or intergovernmental body should take over the IANA stewardship role, it is difficult to see why the GAC's operating principles should have an effect on the IANA stewardship function at all. 

With regard to the overall accountability of ICANN (WS2), the GAC may indeed have a role in contributing to enhancing ICANN's accountability and to the organisations' checks and balances in the future. 

However, it should be noted that - unlike the GNSO or the ccNSO - the GAC does not develop or decide about policies, but is - in its role as advisory body of the ICANN board - giving advice to the board on public policy matters. The board can either ask the GAC for advice on an issue or the GAC can advise the board on its own initiative. In both cases, according to the current bylaws, the board is only asked to take GAC advice "duly into account", but is not obliged to follow GAC advice. In case the board decides not to follow GAC advice, the board shall inform the GAC about its reasons for not doing so and will try to find a mutually acceptable solution. If no such solution is found, the board is still free to take its decision without the GAC as a committee having any means to force the board to follow its advice. It is then up to individual GAC members to act according to their "rights and obligations ... with regard to public policy issues falling within their responsibilities". 

According to its operating principles, the GAC works on "the basis of seeking consensus among its membership". Where consensus is not possible, the chair shall "convey the full range of views expressed by members" to the ICANN board. So, under the current operating principles, the GAC may address advice to the board which is either informing the board about a GAC consensus or about the existence of diverse views among its membership on an issue. Again, the board should then take this advice "duly into account". In the past, there have been several examples where there has been a diversity of views among GAC members on an issue which have been communicated to the board.

In the current operating principles, it is not specified how - in the case of diverse views in the GAC on an issue - this diversity should be communicated to the board. In the attempt to enhance accountability of ICANN's processes as well as the accountability of governments to their citizens and the global community, but also to improve ICANN's checks and balances and to avoid any risk of capture by an individual or a small group of governments, it may be useful to enhance transparency about the range and spread of diversity of views among GAC members, so that - before taking a decision - the board is best informed about this diversity and also the whole community is able to see on what basis GAC advice is formulated and that it is able to assess to what extent such advice has been "duly taken into account". 

I am happy to discuss with you how the GAC can help to contribute to enhancing ICANN's accountability and I am sure that other GAC members (and observers) will contribute to this deliberations as well. 

I am looking forward to a fruitful and constructive discussion in Istanbul

Best regards

Thomas


Thomas Schneider
chair of the GAC


-----Ursprüngliche Nachricht-----
Von: Mathieu Weill [mailto:mathieu.weill at afnic.fr]
Gesendet: Donnerstag, 5. März 2015 17:43
An: Olga Cavalli; Suzanne Radell; Julia Katja Wolman; brumark at telia.com; alice at apc.org; Schneider Thomas BAKOM
Cc: León Felipe Sánchez Ambía; Thomas Rickert; Adam Peake
Betreff: Engagement request from CCWG regarding GAC decision making

Dear GAC members of the CCWG Accountability, Dear Thomas,

[Cc: CCWG Co-chairs]

As you are aware, the CCWG Accountability has identified a number of contingencies and is applying stress tests to its proposals to check how they would mitigate them.

Consistent with the principle set out by the NTIA that the transition proposals should not replace the NTIA role with a government-led or an intergovernmental organization solution, one of the identified contingency is currently defined as such :

Governments in ICANN’s Government Advisory Committee (GAC) amend their operating procedures to change from consensus decisions to majority voting for advice to ICANN’s board.

Consequence: Under current bylaws, ICANN must consider and respond to GAC advice, even if that advice were not supported by consensus. [...]

While investigating whether the measures currently proposed by the CCWG would provide adequate mitigation, concerns were raised that, despite the ability for the community to veto a Board decision, changes in the GAC decision making rules might infringe on the principle set out by the NTIA.

It was proposed within the CCWG that a mitigating measure might be to amend Icann Bylaws so that the provision of article XI 2.1.j of the Bylaws (duly taking into account GAC Advice) would only apply to consensus advice (see current proposal here : 
https://community.icann.org/download/attachments/52888421/Accountability%20Mechanism%20Template%20WP1%204A%20-%20GAC%20consensus.pdf?version=1&modificationDate=1425289292000&api=v2). 


Some similarity could be drawn out from the gNSO policy recommendations Bylaw provisions (Annex A, 9.a) where supermajority votes from the gNSO can only be vetoed by the Board if there is a 2/3 majority to do so.

We are aware of the high sensitivity of this question within the GAC as well as with the community. The GAC is also one of the chartering organizations of the CCWG Accountability. Therefore our group wishes to engage with the GAC to identify how we can meet both the NTIA requirements and a solution that is consistent with the GAC expectations.

Ideally, we would welcome inputs via GAC appointed members to the CCWG and/or specific discussions between ourselves.

Best regards,
Thomas Rickert, Leon Felipe Sanchez, Mathieu Weill Co-chairs, CCWG Accountability _______________________________________________
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