[CCWG-ACCT] [GAC] Stress Test 18

Mon Oct 19 00:05:42 UTC 2015

Reading Anne's comments below, I feel exactly the same way.

"Once NTIA is gone, the GAC and everyone else will need more influence over
Board decisions, not less."

Anything less is courting failure in the medium term of the
multistakeholder governance we crave.
RD
On Oct 18, 2015 7:24 AM, "Aikman-Scalese, Anne" <AAikman at lrrlaw.com> wrote:

> 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
>
> *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 <%3CGCAMPILLOS 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 <+gac-bounces at gac.icann.org>:
> gac-bounces at gac.icann.org> [gac-bounces at gac.icann.org:
> gac-bounces at gac.icann.org>] en nombre de Julia Charvolen
> [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
> <%3Csdelbianco at netchoice.org>>>
> Date: Saturday 17 October 2015 17:49
> To: "gacsec at gac.icann.org:gacsec at gac.icann.org>" :gacsec at gac.icann.org
> <%3Cgacsec 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
>
>
>
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