[CCWG-ACCT] [GAC] Stress Test 18

Sun Oct 18 11:24:16 UTC 2015

Dear all,

>From my point of view, the GAC has been for the most part an enormously helpful AC in the realm of Accountability.  As a trademark lawyer, I am particularly grateful for GAC advice on safeguards.

I recall a time a few years ago when The NTIA put out a notice related to soliciting bids for fulfillment of  the IANA functions.  After that occurred, i think the Board paid MORE attention to GAC advice.  My recollection is that this occurred around the time frame of Beijing.  Once the NTIA is gone, the Board has much less incentive to follow GAC advice.  Consequences are fewer if they do not and boil down to necessitating action by individual governments.

The CCWG has created thresholds for exercise of community powers that completely eliminate the risk of capture. They have also concluded that it would be best if community powers over the budget should be limited to discretionary items.  Unfortunately Fadi, either in his personal and. and without being restrained by the Board has launched a communications strategy that has the obvious effect of "divide and conquer".

Once NTIA is gone, the GAC and everyone else will need more influence over Board decisions, not less.  This is true even if the community powers obtained are never exercised.  it is the fact that such powers exist that renders them effective.  this is not about France board members to occupy those positions. It is rather about strengths and weaknesses which are inherent in the structure of the organisation.

Anne

Sent from my Verizon 4G LTE Tablet

Of

------ Original message------

From: Haan, ir. T.S.M. de (Thomas)

Date: Sat, Oct 17, 2015 4:11 PM

To: Campillos Gonzalez, Gema Maria;

Cc: GAC;accountability-cross-community at icann.org<mailto:;accountability-cross-community at icann.org>

Subject:Re: [CCWG-ACCT] [GAC] Stress Test 18

As Netherlands we are fairly neutral in this discussion but we would like to have the discussion based on facts and as much as possible based on a fair assessment of what GAC's advice really means. We noticed that the reach and impact of GACs advice is being overestimated.

This refers e.g. to the notion in his email by Steve underneath that there is a 'negotiation' when referring to the reconciliation procedure. The term is not appropriate. In negotiations there are two partners involved on equal footing and there is generally some pressure (leading to  benefits or otherwise penalties) on both sides to get to a solution. In the case of the reconciliation process  there is not. The board can conclude there was no possibility to come to a mutual satisfactory solution, still reject the advice, and bear no consequences at all.

Thomas de Haanthe
GAC rep Netherlands

Verstuurd vanaf mijn iPad

Op 17 okt. 2015 om 19:55 heeft Campillos Gonzalez, Gema Maria :GCAMPILLOS at minetur.es<mailto:<GCAMPILLOS at minetur.es>>> het volgende geschreven:

Thank you, Julia, for forwarding us this piece of information.

I would like to comment on the rationale provided and specifically on these points:

- The Board is not obliged to accept GAC advice even if it has to enter into a dialogue with it in order to address disagreements with its content. Please, refer to Article XI, Section 2, point 1, letter k) of the Bylaws. The Board should make their best efforts to accept GAC advice because they have a duty to coordinate the DNS in the global public interest and it´s the GAC who brings that perspective to ICANN.

- How can the Board be accountable to the community for having to seek a mutually acceptable solution if in the end, they are free to decide against GAC advice? The Board should be made accountable for the decisions they finally make, not for the process to arriving at those decisions.

- What does Mr. de Bianco understand by "significant minority" of countries? I´d like to know where he draws the line because the Board may find itself in a similar situation if a PDP is submitted by a supermajority of the GNSO, supermajority meaning in this case 2/3 majority vote of each GNSO House or 3/4 of one House and a majority of the other (Article X, Section 3, point 9, letter l) of the Bylaws). The proposals that were once on the table of the GAC about decision making process didn´t set the threshold below that limit. When the GNSO presents a PDP proposal approved by 2/3 of each House, the Board does not negotiate with the minority not supporting the proposal and indeed, the proposal affects "the global Internet community" as much as GAC recommendations.

- ST 18 is not an incentive for the GAC to keep its current decision making rules as far as providing advice is concerned. It is an outright interference in GAC procedures in spite of GAC autonomy to adopt its internal procedures as stated in Article XI, Section 2, point 1, letter c) of the ICANN Bylaws.

In response to US question today to countries opposing ST 18, the issue is not whether some may want to move to a supermajority rule but to preserve GAC prerrogative to decide on its rules of procedures, just as every other AC in the Bylaws (Section 3 of Article XI of the ICANN Bylaws).

Best regards,

Gema Campillos Glez

________________________________
De: gac-bounces at gac.icann.org<mailto:%20gac-bounces at gac.icann.org>:gac-bounces at gac.icann.org> [gac-bounces at gac.icann.org<mailto:[gac-bounces at gac.icann.org>:gac-bounces at gac.icann.org>] en nombre de Julia Charvolen [julia.charvolen at icann.org<mailto:[julia.charvolen at icann.org>:julia.charvolen at icann.org>]
Enviado: sábado, 17 de octubre de 2015 18:51
Para: GAC
Asunto: [GAC] FW: Stress Test 18

Julia Charvolen
Senior Coordinator, GAC Services

From: Steve DelBianco :sdelbianco at netchoice.org<mailto:<sdelbianco at netchoice.org>>>
Date: Saturday 17 October 2015 17:49
To: "gacsec at gac.icann.org<mailto:>:gacsec at gac.icann.org>" :gacsec at gac.icann.org<mailto:<gacsec at gac.icann.org>>>
Subject: Stress Test 18

Julia,

In GAC session today, some said they did not understand why we needed Stress Test 18.

In case it has been lost in all the email traffic, I want to explain the rationale for the Stress Test and for the bylaws change.   I am at your service to discuss any time that you like.

Best,
Steve

Stress Test 18 was among the plausible scenarios that could test how and whether the ICANN community could challenge actions taken by the ICANN corporation.  The rationale to develop this stress test involves two factors:

First, ICANN community members were aware that some GAC members had expressed a desire to change the GAC’s historical method of using consensus for its decision-making, where “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection”.  Moreover, it would take only a simple majority of GAC members to change its decision-making methods to a lesser standard, such as majority voting.

Second, the CCWG realized that ICANN’s present bylaws obligate the board to seek “a mutually acceptable solution” if it decided not to follow GAC advice.  That level of required deference is unique to the GAC and not required for advice from other AC and SOs.  More important, the board’s obligation to seek a mutually acceptable solution applies to all GAC advice, even if that advice were not supported by GAC consensus, and even if that advice were opposed by a significant minority of GAC members.

For these reasons, CCWG added Stress Test 18 to the draft proposal, and the stress test working party concluded that existing accountability measures were not adequate to let the community hold the ICANN board accountable for its actions if the board were obliged to seek a negotiated solution with the GAC.

In order to address Stress Test 18, CCWG proposed an amendment to ICANN bylaws regarding the board’s obligations with respect to GAC advice.   The amendment would preserve the requirement for ICANN’s board to seek a mutually acceptable solution, but only for GAC advice that was supported by consensus among GAC members.

The rationale for proposing this bylaws amendment in response to Stress Test 18 is two-fold.

First, CCWG wants to reserve ICANN’s board’s obligation to negotiate with the GAC for only that advice which is supported by a consensus of governments.  GAC advice that is opposed by a significant minority of governments should not trigger the board’s obligation to enter bi-lateral negotiations with the GAC on a matter that affects the global Internet community.   A negotiation between ICANN board and GAC should be reserved for resolving differences between ICANN and governments – not to resolve differences among governments themselves.

Second, the proposed bylaws change would provide a strong incentive for the GAC to continue seeking consensus for the advice it provides to ICANN, which is the practice presently used by the GAC. While the GAC could at any time change its decision-making methods, this bylaws change would continue to elevate the influence of GAC advice that was supported by consensus of GAC members.   Similar incentives for consensus policy and advice are already present in the ICANN bylaws, which require supermajority support for policy recommendations coming from GNSO and ccNSO.

The rationale above is meant to explain why Stress Test 18 was developed, and to explain why CCWG proposes a bylaws amendment to preserve ICANN board’s obligation to seek a mutually acceptable solution when GAC advice is supported by consensus.

—
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/>
+1.703.615.6206<tel:+1.703.615.6206>

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