<p dir="ltr">Reading Anne's comments below, I feel exactly the same way.</p>
<p dir="ltr">"Once NTIA is gone, the GAC and everyone else will need more influence over Board decisions, not less."</p>
<p dir="ltr">Anything less is courting failure in the medium term of the multistakeholder governance we crave.<br>
RD<br>
</p>
<div class="gmail_quote">On Oct 18, 2015 7:24 AM, "Aikman-Scalese, Anne" <<a href="mailto:AAikman@lrrlaw.com">AAikman@lrrlaw.com</a>> wrote:<br type="attribution"><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div style="margin-bottom:45px">
<div style="font-size:10pt">
<p dir="ltr" style="margin-top:0;margin-bottom:0">Dear all,</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">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. </p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">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.</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">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".</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">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.</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">Anne</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
<div dir="ltr" style="margin-top:0;margin-bottom:0;font-size:9pt;font-style:italic">
<p dir="ltr" style="margin-top:0;margin-bottom:0">Sent from my Verizon 4G LTE Tablet</p>
</div>
</div>
<div style="font-size:10pt">
<div dir="ltr" style="margin-top:0;margin-bottom:0">
<p dir="ltr" style="margin-top:0;margin-bottom:0">Of</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0">------ Original message------</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><b>From: </b>Haan, ir. T.S.M. de (Thomas)<u></u><u></u></p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><b>Date: </b>Sat, Oct 17, 2015 4:11 PM</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><b>To: </b>Campillos Gonzalez, Gema Maria;</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><b>Cc: </b>GAC<a href="mailto:;accountability-cross-community@icann.org" target="_blank">;accountability-cross-community@icann.org</a></p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><b>Subject:</b>Re: [CCWG-ACCT] [GAC] Stress Test 18</p>
<p dir="ltr" style="margin-top:0;margin-bottom:0"><br>
</p>
</div>
<font size="2"><span style="font-size:10pt">
<div dir="ltr">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.<br>
<br>
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.<br>
<br>
Thomas de Haanthe<br>
GAC rep Netherlands<br>
<br>
Verstuurd vanaf mijn iPad<br>
<br>
Op 17 okt. 2015 om 19:55 heeft Campillos Gonzalez, Gema Maria <a href="mailto:%3CGCAMPILLOS@minetur.es" target="_blank">
<u></u><u></u>:GCAMPILLOS@minetur.es<u></u><u></u></a>>> het volgende geschreven:<br>
<br>
<br>
Thank you, Julia, for forwarding us this piece of information.<br>
<br>
<br>
<br>
I would like to comment on the rationale provided and specifically on these points:<br>
<br>
<br>
<br>
- 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.<br>
<br>
<br>
<br>
- 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.<br>
<br>
<br>
<br>
- 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.<br>
<br>
<br>
<br>
- 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.<br>
<br>
<br>
<br>
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).<br>
<br>
<br>
<br>
Best regards,<br>
<br>
<br>
<br>
Gema Campillos Glez<br>
<br>
<br>
<br>
________________________________<br>
De:<a href="mailto:+gac-bounces@gac.icann.org" target="_blank"> gac-bounces@gac.icann.org</a><u></u>:<a href="mailto:gac-bounces@gac.icann.org" target="_blank">gac-bounces@gac.icann.org</a>>
<a href="mailto:[gac-bounces@gac.icann.org" target="_blank">[gac-bounces@gac.icann.org</a><u></u>:<a href="mailto:gac-bounces@gac.icann.org" target="_blank">gac-bounces@gac.icann.org</a>>] en nombre de Julia Charvolen
<a href="mailto:[julia.charvolen@icann.org" target="_blank">[julia.charvolen@icann.org</a><u></u>:<a href="mailto:julia.charvolen@icann.org" target="_blank">julia.charvolen@icann.org</a>>]<u></u><u></u><u></u><br>
Enviado: sábado, 17 de octubre de 2015 18:51<br>
Para: GAC<br>
Asunto: [GAC] FW: Stress Test 18<br>
<br>
<br>
Julia Charvolen<br>
Senior Coordinator, GAC Services<br>
<br>
From: Steve DelBianco <a href="mailto:%3Csdelbianco@netchoice.org" target="_blank"><u></u><u></u>:sdelbianco@netchoice.org<u></u><u></u></a>>><br>
Date: Saturday 17 October 2015 17:49<br>
To: <a>"gacsec@gac.icann.org</a><u></u>:<a href="mailto:gacsec@gac.icann.org" target="_blank">gacsec@gac.icann.org</a>>"
<a href="mailto:%3Cgacsec@gac.icann.org" target="_blank"><u></u><u></u>:gacsec@gac.icann.org<u></u><u></u></a>>><u></u><br>
Subject: Stress Test 18<br>
<br>
Julia,<br>
<br>
In GAC session today, some said they did not understand why we needed Stress Test 18.<br>
<br>
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.<br>
<br>
Best,<br>
Steve<br>
<br>
<br>
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:<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
The rationale for proposing this bylaws amendment in response to Stress Test 18 is two-fold.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
—<br>
Steve DelBianco<br>
Executive Director<br>
NetChoice<br>
<a>http://www.NetChoice.org<http://www.netchoice.org/</a>> and <a>
http://blog.netchoice.org<http://blog.netchoice.org/</a>><br>
<a href="tel:+1.703.615.6206" target="_blank">+1.703.615.6206</a><br>
<br>
<br>
<br>
_______________________________________________<br>
gac mailing list<br>
<a href="mailto:gac@gac.icann.org" target="_blank">gac@gac.icann.org</a><<a href="mailto:gac@gac.icann.org" target="_blank">mailto:gac@gac.icann.org</a>><br>
<a href="https://mm.icann.org/mailman/listinfo/gac" target="_blank">https://mm.icann.org/mailman/listinfo/gac</a><br>
<br>
Dit bericht kan informatie bevatten die niet voor u is bestemd. Indien u<br>
niet de geadresseerde bent of dit bericht abusievelijk aan u is gezonden,<br>
wordt u verzocht dat aan de afzender te melden en het bericht te <br>
verwijderen. <br>
De Staat aanvaardt geen aansprakelijkheid voor schade, van welke aard <br>
ook, die verband houdt met risico's verbonden aan het elektronisch <br>
verzenden van berichten.<br>
<br>
This message may contain information that is not intended for you. If you<br>
are not the addressee or if this message was sent to you by mistake, you<br>
are requested to inform the sender and delete the message.<br>
The State accepts no liability for damage of any kind resulting from the<br>
risks inherent in the electronic transmission of messages.<br>
<br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org" target="_blank">Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" target="_blank">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><br>
</div>
</span></font></div>
<br>
<hr>
<font face="Arial" color="Gray" size="1"><br>
This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message
or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying
to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
<br>
</font>
</div>
<br>_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org">Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><br>
<br></blockquote></div>