[CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
Roelof Meijer
Roelof.Meijer at sidn.nl
Thu Nov 12 21:11:16 UTC 2015
Someone ones said to me, that if people make a list of points, arguments, pro’s, con’s, etc., they often make a list of 7.
Since then, I have been paying attention to this. And very often, it’s true…
See inline below, Greg
Cheers,
Roelof
From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: donderdag 12 november 2015 16:58
To: Roelof Meijer <roelof.meijer at sidn.nl<mailto:roelof.meijer at sidn.nl>>
Cc: Avri Doria <avri at acm.org<mailto:avri at acm.org>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion
At a practical level, the problem with 2/3 is this:
1. The idea of GAC advice being submitted based on something less than consensus is hypothetical, and may be extremely unlikely ever to occur, so the strong likelihood is that the Board will only ever review GAC consensus advice for the foreseeable future. So, we've prevented a fairly far-fetched scenario (the Board forced to review non-consensus advice by the same standards as consensus advice) at the cost of agreeing to something that will absolutely happen every time GAC advice is reviewed (a vote requiring a 2/3 majority).
You state that as a problem, I do not agree
2. Since the GAC has broad discretion to redefine "consensus," as they should (and they could even adopt the oxymoron "majority consensus," which we have apparently coined in the Executive Summary), our preventive language is extremely weak and easy to work around.
See your own point 1. Again, I argue, it’s your opinion, not a fact. And my opinion is different. The maneuvering room is limited. If the advice is not based on the common understanding of “consensus”, the board and community can (and should if it is bad advice) reject it. Check the Dublin GAC Communique on this.
And what exactly would the GAC (or any other AC for that matter) do? The rejection of the advice would be supported by the community (ex GAC) and a minority of the GAC. Together, that’s some powerful support. By the way: it can be good advice too..
3. It was rejected by the community once, and very little has actually changed since then, protestations to the contrary notwithstanding.
I submit that the stewardship transition and the enhancement of ICANN’s accountability are the largest changes in the history of ICANN. In my opinion, learning from the past is good, but just copy-pasting the past into the future is a bad idea
4. Making GAC advice harder to reject was not in any way the goal of the CCWG, and a 2/3 majority clearly makes it harder to reject
I think that’s your 1 and 2 again, I think (the second bit, that is)
5. Making GAC advice harder to reject increases the power of governments in the ICANN process, which runs contrary to the NTIA's base requirements which form a part of our mandate (I will not indulge in speculation regarding NTIA or Congressional reactions, it's enough to say that it is contrary to the terms).
See my comment on your point 2
6. The "consensus view" language in the general text is at odds with the reference to "GAC consensus" unless it is made clear that "GAC consensus" must always reflect the consensus view of the committee.
Agree, that’s something GAC members themselves commented upon, to be fixed. BUT: what (exacly) is consensus and how it should be reached, is for the individual SO and AC to decide
7. I haven't seen a substantive reason why we should the 2/3 majority, other than that it's the price for peace.
History shows that huge prizes have been paid for peace. This is peanuts, in my opinion. My previous email has some arguments too
Best, Roelof
Greg
On Thu, Nov 12, 2015 at 1:07 PM, Roelof Meijer <Roelof.Meijer at sidn.nl<mailto:Roelof.Meijer at sidn.nl>> wrote:
>I do not understand why 2/3 is not appropriate?
>What is most important is that the board can reject their advice and
>that it learn how to do when that is appropriate.
Yes, indeed. And if the board does not reject the advice, but wants to
follow it up, the community (if sufficiently aligned) can stop the board.
Best,
Roelof
On 10-11-15 19:10, "accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> on
behalf of Avri Doria" <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> on
behalf of avri at acm.org<mailto:avri at acm.org>> wrote:
>Hi,
>
>I do not understand why 2/3 is not appropriate?
>What is most important is that the board can reject their advice and
>that it learn how to do when that is appropriate.
>
>Seems appropriate to me. As someone says the Board does most thing
>based on unanimity anyway.
>
>avri
>
>
>On 10-Nov-15 14:58, Paul Rosenzweig wrote:
>>
>> I am sure that many governments think that a 2/3^rd 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 GAC¹s agreement. Or perhaps it is time for the
>> GAC to recognize that this forum is not the place where it is going to
>> ³win² the result that the Board and community already rejected less
>> than a year ago.
>>
>>
>>
>> Paul
>>
>>
>>
>> Paul Rosenzweig
>>
>> paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
>> <mailto:paul.rosenzweigesq at redbranchconsulting.com<mailto:paul.rosenzweigesq at redbranchconsulting.com>>
>>
>> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660>
>>
>> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650>
>>
>> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739>
>>
>> Skype: paul.rosenzweig1066
>>
>> Link to my PGP Key
>>
>><http://www.redbranchconsulting.com/index.php?option=com_content&view=art
>>icle&id=19&Itemid=9>
>>
>>
>>
>>
>>
>> *From:*Pedro Ivo Ferraz da Silva [mailto:pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>]
>> *Sent:* Tuesday, November 10, 2015 8:22 AM
>> *To:* Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>>;
>> accountability-cross-community at icann.org<mailto: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 o_f *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 ³advisory committees² 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>
>> <mailto: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 Drazek,
>> Keith [kdrazek at verisign.com<mailto: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>
>> <mailto: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 GAC¹s 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 ³advisory committees² 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 ³off
>> the table.² Senator Fischer asked Fadi directly about a proposal to
>> require a 2/3 vote to reject GAC advice. Fadi responded, ³That would
>> be incongruent with the stated goals. The board has looked at that
>> matter and has pushed it back so it¹s off the table.² Senator Fischer
>> followed up and said, ³It¹s off the table,² and Fadi again said: ³It¹s
>> off the table.² 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-mul
>>tistakeholder-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<mailto: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>
>> <mailto: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> <mailto: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/*
>>
>> /³The 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._/*/_² _/
>>
>> / /
>>
>> /ARTICLE XI: ADVISORY COMMITTEES/
>>
>> */Section 2. SPECIFIC ADVISORY COMMITTEES/*
>>
>> */Item 1.j/*
>>
>> /³The 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.²/
>>
>>
>>
>> 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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