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

Wed Nov 11 14:43:36 UTC 2015

Jorge,

I don't understand why the same concerns that the rest of the community expressed when GAC proposed this last year are not still relevant.  If anything, the change of the transition and giving GAC decision making power (under the guise of the word "consensus"), makes those widespread concerns EVEN GREATER - it doesn't eviscerate those concerns, only makes them more concerning.

Robin

On Nov 11, 2015, at 6:23 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

> If I may chime in: the context is very different now. We are now considering (as a result of a ccwg proposal) to embed a "consensus" requirement into the bylaws. That element was not there in 2014. Neither was the transition and the discussion on accountability. The GAC Dublin consensus input to the CCWG reacts and contributed to the delicate discussion on st17, where all this was raised. And as a part of that input, the GAC considered that -with the new consensus requirement- also moving to 2/3 would be sensible.
> 
> hope this helps
> 
> Jorge
> 
> Von meinem iPhone gesendet
> 
> Am 11.11.2015 um 11:17 schrieb Matthew Shears <mshears at cdt.org<mailto:mshears at cdt.org>>:
> 
> Hello Pedro
> 
> Please see in-line
> 
> On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote:
> Dear Greg, Avri,
> 
> Thanks for your comments.
> 
> I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here.
> 
> I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that  "Under this formulation, the GAC gets far more than it has under the current bylaw".
> 
> The suggested language for the bylaws preserves the advisory nature of the GAC with regards to the ICANN Board. It actually restricts it by imposing the requirement of the advice having to be reached based on consensus - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object.
> 
> With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system.
> 
> With regards to the above, and forgive me for asking as it is very difficult to fully follow these discussions while at the IGF, but isn't the call for raising the Board's rejection threshold of consensus advice to 2/3rds the same issue that was opposed by much of the community back in 2014?
> 
> https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en
> 
> If so, I am a little at a loss to understand the purpose of raising it again in the context of these discussions, particularly as it has not been part of the discussions in earlier versions of the proposal or in the pubic comment.
> 
> Many thanks for clarifying.
> 
> Matthew
> 
> 
> 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<mailto:accountability-cross-community-bounces at icann.org>] em nome de Greg Shatan [gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
> Enviado: quarta-feira, 11 de novembro de 2015 5:04
> Para: Avri Doria
> Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
> 
> At the risk of being impolitic, it seems to me that the proposed suggestion essentially turns the concerns of the rest of the community on its head.  Under this formulation, the GAC gets far more than it has under the current bylaw, and the concerns of the rest of the community are barely met, if at all.  The first time the GAC provides advice using "majority consensus" (a term sadly coined in the Executive Summary), we'll know that we got nothing for our bargain.
> 
> As Avri touches on, the new proposed paragraph significantly misstates the current obligations of the Board.  In addition to the misstatement Avri cites, the paragraph attempts to codify the informal descriptor "due deference" which is actually not what the current bylaws says. Furthermore, the idea that if the Board decides not to follow GAC advice, the Bylaw "requires finding mutually agreed solutions for implementation of that advice" -- the very advice the Board has decided not to follow, is clearly incorrect -- the Board's only obligation is to try in good faith to find a mutually acceptable solution.  A requirement to "try" is not a requirement to "find" and a "mutually acceptable solution" need not (and probably does not) involve implementation of the GAC advice (except in a revised fashion acceptable to the Board).
> 
> Others have commented on the "ask" for a 2/3 requirement to reject advice, and I'll only say I agree with them.  This is entirely consistent with the idea that the GAC is a co-equal (if not more than equal) policymaker with the GNSO (and ccNSO), which in turn is entirely inconsistent with the fundamental mechanics of ICANN and the "balance of power' among SO/ACs which the Executive Summary boldly says we are not changing.
> 
> I have nothing but respect for the unique and critical role that the GAC plays at ICANN, and respect for the GAC members as well, so please do not see this as disrespect for either.  It is, however, a fairly complete rejection of this particular proposal, as stated.  I may revisit it to see what can be salvaged, but I've run out of steam for the night, given that this is hour 20 since I awoke for our Tuesday meeting.
> 
> Greg
> 
> On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri at acm.org<mailto:avri at acm.org>> wrote:
> 
> 
> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
> 
> */_if not followed, requires finding mutually agreed solutions for
> implementation of that advice_/*
> 
> The current bylaws state:
> 
>> 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 am wondering whether the the words 'try , in good faith and in a
> timely and efficient manner, ' were accidentally dropped from the newly
> proposed formulation.
> 
> Form my perspective there is a world of difference between requiring a
> genuine attempt to find a mutually acceptable solution and the
> requirement for finding one.
> 
> In one case if the attempt fails, the Board is still free to make a  to
> reject the advice.  In the later, the Board seems bound to find a
> mutually agreed upon solution without the abilty to reject the advice if
> no such solution can be found.
> 
> Can someone clarify this for me?  I accept that having missed a few
> meeting lately, my understanding may be lagging, but that is my reason
> for returning to the proposed and existing language.
> 
> thanks
> 
> avri
> 
> 
> 
> 
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> --
> 
> Matthew Shears
> Director - Global Internet Policy and Human Rights
> Center for Democracy & Technology
> mshears at cdt.org<mailto:mshears at cdt.org>
> + 44 771 247 2987
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