[CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Mon Nov 9 20:02:44 UTC 2015

Steve,

Your previous e-mail also had this caveat:

“I believe that a new +2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection.  As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.”

I believe that this is very important and should not be forgotten.

Best,

Brett

________________________________
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<http://heritage.org/>
From: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] On Behalf Of Steve DelBianco
Sent: Monday, November 09, 2015 2:42 PM
To: Jordan Carter; wp1 at icann.org
Cc: accountability-cross-community at icann.org
Subject: Re: [WP1] [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Either Stress Test or WP1, Jordan.  But either way we start, this should go to the full full CCWG and get an official GAC view.

To set this up, our 1st and 2nd draft reports responded to ST18 by adding
"With respect to Governmental Advisory Committee advice that is supported by consensus”
in front of the exiting bylaws Article XI Section 2j "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. “

We now have two alternative texts to replace the above change, with a paragraph in Article XI that would apply to board obligations to deal with advice from ANY advisory committee:

Pedro:  Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.

Mine:  For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee.  Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

In addition, Pedro suggests requiring a change to bylaws Article XI Section 2j regarding how the board must deal with GAC advice:

Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board.

From: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Date: Monday, November 9, 2015 at 3:10 PM

... or, should it stay in the ST-WP, where all this has been done so far?
[my preference would be in ST-WP]

On 10 November 2015 at 03:48, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>> wrote:
Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees.  What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee.  Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice.   That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s advice.

I believe that a new +2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection.  As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin.   I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin)  This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards,
Steve

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>>
Date: Monday, November 9, 2015 at 11:28 AM
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear CCWG colleagues,

As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:

"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:

·         The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;

·         The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;

·         The value the Board attributes to receiving consensus advice;

·         The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold

for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.

In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."

With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.

ARTICLE XI: ADVISORY COMMITTEES
Section 1. GENERAL
“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.
Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”

ARTICLE XI: ADVISORY COMMITTEES
Section 2. SPECIFIC ADVISORY COMMITTEES
Item 1.j
“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 GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. 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.”

Kind regards,

Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609<tel:%2B55%2061%202030-6609>

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Chief Executive
InternetNZ

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A better world through a better Internet

--
Jordan Carter

Chief Executive
InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
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A better world through a better Internet

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