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

Fri Nov 13 13:43:34 UTC 2015

Olga,

As stated in my earlier email, currently the Board, if it decides not to follow GAC advice, it is obligated to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." In other words, the Board currently has to make a good faith effort or “try” to find a compromise solution, but if the effort is unfruitful, the Board’s decision is final.

Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice." Pedro’s proposal would “require” or compel Board to find a compromise with the GAC.

If that is not his intent, he should make clear that he misspoke and is not proposing any change to that language.

Best,

Brett

From: Olga Cavalli [mailto:olgacavalli at gmail.com]
Sent: Friday, November 13, 2015 8:22 AM
To: Schaefer, Brett
Cc: Pedro Ivo Ferraz da Silva; Jorge.Cancio at bakom.admin.ch; accountability-cross-community at icann.org
Subject: Re: RES: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear Brett,

Plase be so kind to clarify to me this sentence:

"but you seek to make it compulsory."

What in Pedro´s text you find compulsory?

Many thanks and regards
Olga

2015-11-13 9:39 GMT-03:00 Schaefer, Brett <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>>:
Pedro,

With respect, you are engaging in word games. Nothing you say below changes any of my points.

The Board may currently be committed to finding a mutually acceptable solution, but you seek to make it compulsory.

You want to raise the rejection requirement to 2/3 of the Board. The rules on PDPs do not alter this fact. You are proposing a change from the status quo.

You are unwilling to commit to the current rules on consensus in exchange for these changes.

These points are all correct.

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<tel:202-608-6097>
heritage.org<http://heritage.org>

________________________________
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/>
On Nov 13, 2015, at 2:59 AM, Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>> wrote:
>
> Dear Bret,
>
> With all due respect, many of the points you have raised below are simply not correct.
>
> There is no intention whatsoever to change the standard or nature of the GAC advice given to the Board.
>
> As I said previously to Keith, 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 of restrictive nature, i.e. it is not adding new elements, but rather referring to a current practice (Board engaged in finding a mutually accepted solution) that now would require consensus advice.
>
> And, again, there are no radical changes being proposed. The suggested language does not only preserve 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. And as others have very wisely indicated, raising the rejection threshold to 2/3 makes it equivalent to the rejection threshold applied e.g. to PDPs, thus not changing at all the relative influence of the GAC advice in ICANN's decision-making system.
>
> Finally, as a member of the GAC, Brazil supports all its Operating Principles, including OP 47. We also support the notion - which is implicit is this very OP and concurs with GAC's consensus position put forth in the ICANN 54 communiqué - that is up to the GAC itself to determine what the definition it will apply to its consensus based decisions.
>
> 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 Schaefer, Brett [Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>]
> Enviado: sexta-feira, 13 de novembro de 2015 1:32
> Para: Olga Cavalli; Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
> Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
> Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
>
> As I understand it, Pedro is proposing a significant expansion of GAC authority as compared to the status quo.
>
> Currently, the Board, if it decides not to follow GAC advice, is required to "try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution." Pedro proposes making a mutually acceptable solution and implementation compulsory -- "where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice."
>
>
>
> Pedro is proposing raising the threshold for the Board to reject GAC advice from a simple majority to a two-thirds majority.
>
>
>
> He is also proposing changing the standard from the "advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account" into one where the Board must give GAC advice "due deference."
>
>
>
> Pedro apparently is opposed to the idea that the bylaws should restrict the privileged treatment of GAC advice only when that advice is supported by the current definition of GAC consensus in Operating Principle 47, i.e. without formal objection. I may be wrong, but that is the impression I get from his insistence that in providing advice to the Board "each Advisory Committee has the right to determine its particular definition of consensus."
>
>
>
> In sum, Pedro is proposing changes more radical than those that raised near unanimous opposition when the Board entertained it last year.
>
>
>
> No thanks.
>
>
> ________________________________
> 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<tel:202-608-6097>
> heritage.org<http://heritage.org><http://heritage.org/>
>
> ________________________________________
> From: 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>] on behalf of Olga Cavalli [olgacavalli at gmail.com<mailto:olgacavalli at gmail.com>]
> Sent: Thursday, November 12, 2015 9:39 PM
> To: Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
> 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 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<mailto:Jorge.Cancio at bakom.admin.ch>> <Jorge.Cancio at bakom.admin.ch<mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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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