[CCWG-ACCT] the difference between a PDP and GAC Advice...

Mon Feb 1 22:52:44 UTC 2016

Dear Becky

You are kind to try, but I think it is to no avail.  Keith explained it to
Jorge; you've explained it to him; Mike explained it to him; I have as well,
though less ably than you.

Jorge is just trying to avoid the developing consensus in favor of your
proposal (which includes other members of the GAC apparently) by raising
false equivalence claims.  It's an ineffective tactic that does nothing more
than demonstrate the weakness of his position.  He wants an enhanced GAC
role - your proposal threatens his success in that endeavor.

Paul

Paul Rosenzweig

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From: Burr, Becky [mailto:Becky.Burr at neustar.biz] 
Sent: Monday, February 1, 2016 4:49 PM
To: Accountability Community <accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] the difference between a PDP and GAC Advice...

Jorge asks why I am drawing a distinction between GAC Advice and the output
(e.g., a policy developed through a PDP) of a supporting organization or
this new "GNSO Guidance." The differences between a PDP (or Guidance on
implementation of a PDP) and GAC Advice are both structural and substantive.
In short, the process for issuing GNSO policy and guidance has built-in
safeguards to prevent Mission creep and promote transparency and public
consultation.  For many reasons, including some that I consider entirely
appropriate, that's not the case with GAC Advice.  

On the one hand, the GAC can give Advice on any topic it likes.  Yes,
technically it must relate to "public policy" - but as we know that is a
very broad concept.  The GAC can also give that Advice at any time it likes
- before, during, or well after a PDP or even the Board's acceptance of a
PDP.     There is no rule that says that GAC Advice must relate to a topic
within ICANN's Mission or that such Advice must be consistent with ICANN's
Bylaws.  Both the flexibility with respect to topic and timing mean that GAC
Advice can be disruptive to ongoing policy development and/or
implementation. And, under Rec. 11 as currently proposed, the Board must
accept that Advice unless 66% of the Board opposes it.  That's the case no
matter what that Advice is and even if a majority of the Board thinks it
would violate ICANN's Bylaws to implement that Advice.  

A PDP, on the other hand, takes place in a highly structured environment
that is strictly controlled both by subject matter and sequencing.  Even
before the PDP really gets off the ground it is subject to review by ICANN's
General Counsel as to whether or not it is within ICANN's Mission.  That is
a critical structural safeguard against scope creep that distinguishes a PDP
from GAC Advice.  

The PDP process is highly structured, with numerous safeguards that protect
against scope creep and ensure transparency:

a. 

Final Issue Report requested by the Board, the GNSO Council ("Council") or
Advisory Committee. The issue report must affirmatively address the
following issues:

*	The proposed issue raised for consideration;
*	The identity of the party submitting the request for the Issue
Report;
*	How that party is affected by the issue, if known;
*	Support for the issue to initiate the PDP, if known;
*	The opinion of the ICANN General Counsel regarding whether the issue
proposed for consideration within the Policy Development Process is properly
within the scope of the ICANN's mission, policy process and more
specifically the role of the GNSO as set forth in the Bylaws.
*	The opinion of ICANN Staff as to whether the Council should initiate
the PDP on the issue

b. 

Formal initiation of the Policy Development Process by the Council;

c. 

Formation of a Working Group or other designated work method;

d. 

Initial Report produced by a Working Group or other designated work method;

e. 

Final Report produced by a Working Group, or other designated work method,
and forwarded to the Council for deliberation;

f. 

Council approval of PDP Recommendations contained in the Final Report, by
the required thresholds;

g. 

PDP Recommendations and Final Report shall be forwarded to the Board through
a Recommendations Report approved by the Council]; and

h. 

Board approval of PDP Recommendations.

The proposal to create "GNSO Guidance" doesn't change things dramatically -
as proposed by the Policy and Implementation Working Group, because such
guidance "would typically involve clarification of, or advice on existing
gTLD policy recommendations."

J. Beckwith Burr 
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 /  <http://www.neustar.biz>
neustar.biz

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