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

Tue Nov 10 17:58:45 UTC 2015

I am sure that many governments think that a 2/3rd rejection threshold is
appropriate for GAC advice. Almost nobody else does.  Perhaps it is time for
the community to recognize that it may have to proceed without the GAC’s
agreement.  Or perhaps it is time for the GAC to recognize that this forum
is not the place where it is going to “win” the result that the Board and
community already rejected less than a year ago.

Paul

Paul Rosenzweig

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From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo at itamaraty.gov.br] 
Sent: Tuesday, November 10, 2015 8:22 AM
To: Drazek, Keith <kdrazek at verisign.com>;
accountability-cross-community at icann.org
Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion

Dear Keith, 

Thank you for your comments. Here my responses:

>>> The ICANN board would have to engage to find mutually acceptable
alternatives to rejected advice no matter how GAC determines its own level
of consensus – a major change from GAC Operating 

>>> Principle 47 and not the focus of the CCWG;

The proposed bylaw amendment indicates that any AC "has the right to
determine its particular definition of consensus".  It is simply an
expression of the principle that each stakeholder group should have the
autonomy to determine its own working method, in this case how it reaches
consensus. I don't see this as a "major change" nor that it would contradict
Operating Principle 47. Quite the contrary: it reinforces the notion that
the "operating principles" (or similar dispositions) is the appropriate
place where consensus should be defined.   

>>> The board could no longer reject GAC advice by majority vote, another
significant change from current, longstanding bylaw practice; 

During GAC discussions in Dublin many governments felt that preserving the
advice rejection threshold as simple majority - in opposition to the two
thirds threshold required to reject e.g. GNSO PDP recommendations - would
represent mistrust towards the GAC. Hence, in suggesting that the given
threshold be placed on equal terms with others - thereby following a
recommendation that emanated from the BGRI WG-, there is by no means the
intention to grant the GAC excepcional powers in relation to other SO/ACs.
It is rather an intent to equalize the threshold to what has been
"longstanding bylaw practice" with regards to SOs. I understand that the
nature and scope of GAC advices is not the same as of the PDPs, but I fail
to see why a lower rejection barrier needs to be applied to advices that
concern such an essential issue as public policies.      

>>> The board could only reject such advice by a vote of MORE than
two-thirds, a supermajority threshold above and beyond even a two-thirds
threshold, which itself would constitute a major bylaw change.

The use of "more than two-thirds" is also present in the language related to
GNSO PDP recommendation  (Annex A, Section 9): "Any PDP Recommendations
approved by a GNSO Supermajority Vote shall be adopted by the Board unless,
by a vote of more than two-thirds (2/3) of the Board, the Board determines
that such policy is not in the best interests of the ICANN community or
ICANN."

>>> By use of the plural “advisory committees” it implies that the board
will be required to engage all ACs in looking for mutually agreed solutions
to rejected advice and ACs can determine consensus in any manner they
choose.

This is not what is written in the suggestion. The sentence "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" is restrictive and clearly
means that it applies only to the case where "finding mutually agreed
solution" is necessary. Hence, it is by no means extending existing
prerogatives or powers to ACs for which this requirement isn't there.

Regards,

Pedro   

  _____  

De: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[accountability-cross-community-bounces at icann.org] em nome de Drazek, Keith
[kdrazek at verisign.com]
Enviado: segunda-feira, 9 de novembro de 2015 18:29
Para: accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> 
Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Thanks to Pedro for trying to help the CCWG reach closure on ST-18, but I
have to respectfully disagree with this proposal. 

The proposed language constitutes substantial changes to the role and
influence of the GAC, far exceeding what the CCWG is charged with doing --
coming up with reasonable accountability checks on a post-transition ICANN
and not materially recasting the GAC’s position in the community. The intent
of ST-18, as part of the accountability discussion, is the preservation of
the role and relative influence of governments within ICANN through a clear
obligation for the board to give special deference to GAC advice only when
there is no formal governmental objection to such advice. This proposal
appears to do the opposite by materially recasting the GAC's position.

Under the proposed language for Art. XI, Section 2, Item 1.j:

1.	The ICANN board would have to engage to find mutually acceptable
alternatives to rejected advice no matter how GAC determines its own level
of consensus – a major change from GAC Operating Principle 47 and not the
focus of the CCWG; 

2.	The board could no longer reject GAC advice by majority vote,
another significant change from current, longstanding bylaw practice; and 

3.	The board could only reject such advice by a vote of MORE than
two-thirds, a supermajority threshold above and beyond even a two-thirds
threshold, which itself would constitute a major bylaw change. 

In addition, the proposed language regarding Art. XI, Section 1 would
substantially enlarge by clear implication the role of all other ACs. By use
of the plural “advisory committees” it implies that the board will be
required to engage all ACs in looking for mutually agreed solutions to
rejected advice and ACs can determine consensus in any manner they choose.
This is far beyond anything the CCWG has discussed.  I believe the proposed
text from Steve would give the GAC its desired change here, without implying
that ICANN must seek a mutually acceptable solution on any Advisory
Committee advice it declines to adopt. 

Also, importantly, Fadi told the U.S. Congress in February 2015 that any
move to require a 2/3 Board majority to reject GAC advice was “off the
table.”  Senator Fischer asked Fadi directly about a proposal to require a
2/3 vote to reject GAC advice. Fadi responded, “That would be incongruent
with the stated goals. The board has looked at that matter and has pushed it
back so it’s off the table.” Senator Fischer followed up and said, “It’s off
the table,” and Fadi again said: “It’s off the table.” This started on the
video at the 1:12:50 mark (on the counter on the right)
http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multis
takeholder-model-of-internet-governance  I expect any change on this point
might raise some serious and difficult questions.

Accordingly, I support the earlier responses from Steve and Phil.

Regards,

Keith

From: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
Kavouss Arasteh
Sent: Monday, November 09, 2015 2:55 PM
To: Pedro Ivo Ferraz da Silva
Cc: accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> 
Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear Pedro

Yes but the GAC should implement the last part of that consensus text,i.e.
To modify ST 18 as soon as possible and submit that to CCWG during the 30
days public comments. The GAC Chair nerds to take immediate action in that
regard 

Regards

Kavouss

Sent from my iPhone

On 9 Nov 2015, at 15:28, Pedro Ivo Ferraz da Silva
<pedro.ivo at itamaraty.gov.br <mailto:pedro.ivo at itamaraty.gov.br> > wrote:

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

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