[CCWG-ACCT] Rationale for Stress Test 18

Roelof Meijer Roelof.Meijer at sidn.nl
Mon Oct 19 14:24:29 UTC 2015


Steve, all,

First of all, Steve, as others in this thread have already remarked: you do not make it clear enough that whichever way the GAC has arrived at its advice to the board, the board can still reject the advice without consequences.

Beginning of this year, when we started this discussion, I have on multiple occasions argued against ST18. And I am still against this bylaw change.

My main reasons:


  1.  Leave it to the GAC. We’re trying to interfere with how they arrive at their advice or at least how ICANN should deal with it. It’s an internal affair, we woudn’t like the GAC involving itself with ccNSO/gNSO/ALAC matters either.
  2.  Like I said above: the board can always reject GAC advice. And it is even easier to do so for the board if the GAC itself is divided and the (majority of the rest of the)  community supports such a rejection
  3.  #2 is presently already the case. If the powers the CCWG identified are implemented to whatever mechanism we decide on, the new “enhanced accountability ICANN” has even more safeguards:  if the boards wants to follow “split-GAC” or consensus GAC advice that community doesn’t want, there are the powers to stop that. So getting ST18 is not important, the noise it creates (through a display of distrust in the GAC and meddling in their affairs) is a problem though.
  4.  In practice, the bylaw change may well give any government (of significant size and influence, e.g. the US) a veto option of any advice that the board would really have to take serious. I do not think that is to the advantage of the community

Best,

Roelof Meijer

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>
Date: zaterdag 17 oktober 2015 17:51
To: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Rationale for Stress Test 18

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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