[CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC

Greg Shatan gregshatanipc at gmail.com
Mon Feb 1 07:17:12 UTC 2016 

We are only "polling," not "voting."

It seems, however, that the poll will have the same effect as a vote, to
the extent the effect is discernible from the Chairs' email.

On Monday, February 1, 2016, Dr Eberhard W Lisse <epilisse at gmail.com> wrote:

> That would be change our working method to voting, wouldn't it?
>
> el
>
> --
> Sent from Dr Lisse's iPhone 6s
>
> On 1 Feb 2016, 08:08 +0200, James Gannon <james at cyberinvasion.net
> <javascript:_e(%7B%7D,'cvml','james at cyberinvasion.net');>>, wrote:
>
> I agree with Greg on process here, lets not undermine the carefully
> contacted balances of consensus in the aim of getting a quick result here.
>
> -jg
>
> From: <accountability-cross-community-bounces at icann.org
> <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces at icann.org');>>
> on behalf of Greg Shatan <gregshatanipc at gmail.com
> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>>
> Date: Monday 1 February 2016 at 5:56 a.m.
> To: Mathieu Weill <mathieu.weill at afnic.fr
> <javascript:_e(%7B%7D,'cvml','mathieu.weill at afnic.fr');>>
> Cc: CCWG Accountability <accountability-cross-community at icann.org
> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
> >
> Subject: Re: [CCWG-ACCT] Notice of polling of members on Recommendation
> 11 at the next meeting of the CCWG February 2nd 06:00UTC
>
> Dear Co-Chairs,
>
> I have to say that I do not agree entirely with your reading of the
> charter reflected in the following statement:
>
> According to our Charter, the co-chairs shall be responsible for
> designating each position as having one of the following designations:
>
>
>
> a)      Full Consensus - a position where no minority disagrees;
> identified by an absence of objection
>
> b)     Consensus – a position where a small minority disagrees, but most
> agree
>
>
>
> Accordingly, determination of consensus will be based on the level of
> objection, not support.
>
>
> Specifically, the above appears to be correct for determining Full
> Consensus (distinguished by "an absence of objection").   However, the
> above appears to be incorrect for determining Consensus, which requires
> that "most agree," in addition to requiring that only "a small minority
> disagrees."  In other words, a finding of "Consensus" requires both a
> minimum level of *support* ("most agree") and a maximum level of
> *objection* (only "a small minority disagrees").
>
>
> On this basis, if there are any objections, the responses of  "most"
> members must indicate agreement, rather than a mere lack of objection, to
> support a finding of Consensus.  Abstentions, no-shows, and "neither
> support nor object" responses would not count toward Consensus.
>
>
> I am hopeful that we could still make progress toward consensus in the
> next 24 hours such that a "consensus call" is unnecessary.  Nonetheless, if
> it comes to a poll, I hope that you will adjust your methodology
> accordingly.
>
>
> Finally, I will reiterate my suggestion that, if a poll is conducted, it
> also tests the level of support and objection for the "option packages"
> that have emerged since the Third Draft Report was published over two
> months ago.
>
>
> Best regards,
>
>
> Greg
>
>
>
> On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill at afnic.fr
> <javascript:_e(%7B%7D,'cvml','mathieu.weill at afnic.fr');>> wrote:
>
>> Dear Colleagues,
>>
>> Our usual approach is not achieving consensus on a way forward with
>> Recommendation 11.  So, as discussed at our last meeting, we will be
>> conducting a poll of Members on this question at our next meeting.
>>
>> We will only be conducting a poll on third draft Recommendation 11, with
>> the current minor amendments, given it is the text presented in the third
>> draft and no alternative so far has demonstrated an ability to bring the
>> different perspectives any closer.
>>
>> Exceptionally and unfortunately we will only be polling Members of the
>> CCWG as defined and permitted in our charter.
>>
>> According to our Charter, the co-chairs shall be responsible for
>> designating each position as having one of the following designations:
>>
>>
>>
>> a)      Full Consensus - a position where no minority disagrees;
>> identified by an absence of objection
>>
>> b)     Consensus – a position where a small minority disagrees, but most
>> agree
>>
>>
>>
>> Accordingly, determination of consensus will be based on the level of
>> objection, not support.
>>
>> In the absence of Full Consensus, the co chairs will allow for the
>> submission of minority viewpoint(s)which will be included in the
>> Suppplemental report.
>>
>> In the absence of Consensus, we will need to assess what process the
>> group will follow to rebuild consensus, or whether the absence of Consensus
>> should be reported to the Chartering Organizations.
>>
>> The polling question will be:
>>
>> *Do you object to including Recommendation 11 as written below in the
>> CCWG-Accountability’s supplemental report to be submitted for Chartering
>> Organisation approval?*
>>
>> Members unable to attend the meeting in-person may appoint an alternate.
>> Alternates will be eligible if they are a current participant of the
>> CCWG-Accountability. Alternates must be announced prior to the call to
>> acct-staff at icann.org
>> <javascript:_e(%7B%7D,'cvml','acct-staff at icann.org');>.
>>
>>
>> *                             *
>>
>>
>>                 *
>>
>> Recommendation 11 is designed to address Stress Test 18, which identified
>> that GAC may change its method of decision-making to something other than
>> the method it now uses: general agreement in the absence of any formal
>> objections.  Today’s bylaws would still require the ICANN board to “try to
>> find a mutually acceptable solution,” even for GAC advice that was opposed
>> by a significant number of governments.  To address this Stress Test,
>> Recommendation 11 currently reads:
>>
>> 1        The CCWG-Accountability recommends that the following changes
>> be made to the ICANN Bylaws Article XI, Section 2:
>>
>> *j. The advice of the Governmental Advisory Committee on public policy
>> matters shall be duly taken into account, both in the formulation and
>> adoption of policies. In the event that the ICANN Board determines to take
>> an action that is not consistent with the Governmental Advisory Committee
>> advice, it shall so inform the Committee and state the reasons why it
>> decided not to follow that advice. Any Governmental Advisory Committee
>> advice approved by a full Governmental Advisory Committee consensus,
>> understood to mean the practice of adopting decisions by general agreement
>> in the absence of any formal objection, may only be rejected by a vote of
>> 2/3 of the Board, and the Governmental Advisory Committee and the ICANN
>> Board will then try, in good faith and in a timely and efficient manner, to
>> find a mutually acceptable solution.*
>>
>>
>>
>> 2        Notes:
>>
>> The GAC has the autonomy to refine its operating procedures to specify
>> how objections are raised and considered (for example, disallowing a single
>> country to continue an objection on the same issue if no other countries
>> will join in an objection). When transmitting consensus advice to the Board
>> for which the GAC seeks to receive special consideration, the GAC has the
>> obligation to confirm the lack of any formal objection.
>>
>> This recommendation is intended only to limit the conditions under which
>> the ICANN board and GAC must “try to find a mutually acceptable solution”,
>> as required in ICANN’s current bylaws.  This recommendation shall not
>> create any new obligations for ICANN board to consider, vote upon, or to
>> implement GAC advice, relative to the bylaws in effect prior to the IANA
>> transition.
>>
>> Insert this requirement for all ACs: A rationale must accompany any
>> formal advice provided by an Advisory Committee to the ICANN Board. The
>> Board shall have the responsibility to determine whether the rationale
>> provided is adequate to enable determination of whether following that
>> advice would be consistent with ICANN bylaws.
>>
>> To address the concern of GAC advice inconsistent with bylaws, add this
>> clarification for legal counsel to consider when drafting bylaws language:
>>
>> ICANN cannot take action - based on advice or otherwise – that is
>> inconsistent with Bylaws.  While the GAC is not restricted as to the advice
>> it can offer to ICANN, it is clear that ICANN may not take action that is
>> inconsistent with its Bylaws. Any aggrieved party, or the empowered
>> community, will have standing to bring an IRP to challenge whether a board
>> action or inaction is inconsistent with its bylaws, even if the board acted
>> on GAC advice.
>>
>> The language proposed in recommendations for ICANN Bylaw revisions are
>> conceptual in nature at this stage. The CCWG-Accountability’s external
>> legal counsel and the ICANN legal team will draft final language for these
>> revisions to the Articles of Incorporation and Bylaws (Fundamental/Standard
>> Bylaws).
>>
>>
>>
>> As a reminder, Recommendation 11 obtained the following results in the
>> public comment period on the third draft of the CCWG-Accountability:
>>
>> ·         Support 35
>>
>> ·         Against 19
>>
>> ·         Neutral 2
>>
>> ·         N/A 26
>>
>>
>>
>> Chartering Organization responses to the Third draft are summarized as:
>>
>> ·         GNSO : “Little support; strong opposition” to Rec 11 as
>> written in Third Draft Proposal. “Most SG/Cs do not support” raising
>> threshold for Board vote to reject GAC advice. Serious concern over lack of
>> specificity in relation of requirements for GAC advice (such as provision
>> of rationale) and possibility that this recommendation, if adopted, could
>> unduly change nature of Board-GAC relationship and/or position of GAC
>> vis-à-vis other SO/ACs. Several SG/Cs believe any recommendation should
>> retain current flexibility in Bylaws where Board is not required to
>> undertake a formal vote in order to reject GAC advice.
>>
>> ·         ccNSO: no specific comment
>>
>> ·         ASO: In general, we find the current text acceptable.
>> Additionally, we would like to make the following remarks: We would support
>> a text that clarifies today’s practices and does not substantially change
>> the GAC's role and how its advice is treated by the Board or substantially
>> strengthen obligations for the Board to consider the GAC advice. We would
>> not support a text that cannot be acceptable by the NTIA.
>>
>> ·         GAC: There is no consensus within the GAC so far to support or
>> object to the text contained in Recommendation 11 of the 3rd Draft Proposal.
>>
>> ·         ALAC: supports the recommendation
>>
>> SSAC: no specific comment
>>
>> Best,
>>
>> Leon Thomas & Mathieu
>>
>> CCWG Accountability Co-chairs
>>
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>>
>>
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