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

[Drazek, Keith]

All, a comment and a few questions:

I believe that NTIA has been clear that the level of GAC consensus required to trigger Board obligations and engagement must not change, nor be subject to change. Without such language included in the bylaws to guarantee this, I believe the community proposal will not be accepted by NTIA.

I think views to the contrary are mistaken and I'm worried that a miscalculation on this issue could put at risk everything we've worked to accomplish over the last 18 months.

Speaking personally...I might be able to support the 2/3 threshold, and I could probably support the GAC as a co-equal in the community mechanism, but I believe strongly that any proposed change in the definition of GAC consensus that triggers Board obligations is a non-starter and a likely deal-killer.

A few questions:

-- Has the GAC reached consensus that it wants the 2/3 Board vote threshold for overriding GAC consensus advice? 

-- Has the GAC reached consensus that the Board's obligations regarding GAC consensus advice should be based on a new threshold that is weaker than "the absence of formal objection?" 

-- Has the GAC reached consensus that it will participate as "decisional" vs. "advisory" in the final step of the community mechanism?

-- What level of GAC member support do the "alternative proposed by Brazil" and "concerns mentioned by colleagues" have?

Thanks and regards,
Keith


> On Nov 12, 2015, at 11:39 PM, Olga Cavalli <olgacavalli at gmail.com> wrote:
> 
> Dear Steve
> I agree with Jorge's comments.
> regards
> Olga
> 
>> El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio at bakom.admin.ch> <Jorge.Cancio at bakom.admin.ch> escribió:
>> 
>> Dear Steve
>> 
>> After the Dublin consensus input and the vibrant debate on this list, I feel there is no presumption that the 2nd draft report text (or a small variation of it) would go by default to the rhird draft report.
>> 
>> I feel that what we have to do is to work out a new text, which builds a consensus around what has been discussed here, i.e. which adresses the GAC consensus input, the alternative proposed by Brazil, and the concerns mentioned by a number of colleagues.
>> 
>> "see" you all in some hours
>> 
>> Jorge
>> 
>> Von meinem iPhone gesendet
>> 
>> Am 12.11.2015 um 21:15 schrieb Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>:
>> 
>> Per Brett’s request for a recap:
>> 
>> GAC’s Dublin Communique included this txt on ST 18. ( The only surprise here was the highlighted text)
>> 
>> "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.
>> 
>> Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points 1-3 in the communique, with a new general section that applies to all ACs:
>> 
>> 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.
>> 
>> I offered an alternative to avoid use of the term “due deference” since that term is not defined, and might imply this obligation extends to all ACs.  And my alternative does not explicitly state that an AC can define its own consensus rule, since that is implied already.
>> 
>> 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.
>> 
>> I feel we are very close, and could merge these two alternatives into one.
>> 
>> Second, Pedro added the GAC request to require "more than 2/3 board vote” to reject GAC advice.   That has not been previously discussed in the CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.
>> 
>> As noted above, GAC could change its consensus rule to a much lower threshold than it uses today, “the absence of any formal objection”.   Yet, a board rejection would trigger the requirement to seek a mutually acceptable solution, even if a significant minority of sovereign governments  did not support the GAC 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).
>> 
>> The attached text is what would go into our 3rd report, pending new text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which has repeatedly said that the bylaws change for ST18 is a requirement for the transition.
>> 
>> —Steve
>> 
>> 
>> From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>>
>> Date: Thursday, November 12, 2015 at 6:09 PM
>> To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>
>> Cc: "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: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
>> 
>> Would be useful to see the suggested changes laid out again, we've had a hundred emails in the past two days.
>> 
>> 
>> <Stress Test 18 text for 3rd draft proposal[1].docx>
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