<HTML><BODY><p style='margin-top: 0px;' dir="ltr">Of course it doesn't. . As I have said he is being deliberately obtuse. <br>
--<br>
Paul Rosenzweig<br>
Sent from myMail app for Android</p>
Saturday, 06 February 2016, 00:47PM -05:00 from "James M. Bladel" <<a href="mailto:jbladel@godaddy.com">jbladel@godaddy.com</a>>:<br><br><blockquote style='border-left:1px solid #FC2C38; margin:0px 0px 0px 10px; padding:0px 0px 0px 10px;' cite="14547818480000092559">
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<div id="style_14547818480000092559_BODY">Given the very different roles & natures of SO¹s versus ACs, this<br>
comparison of voting thresholds doesn¹t make sense.<br>
<br>
J.<br>
<br>
<br>
On 2/6/16, 4:29 , "<a href="/compose?To=accountability%2dcross%2dcommunity%2dbounces@icann.org">accountability-cross-community-bounces@icann.org</a> on<br>
behalf of Perez Galindo, Rafael"<br>
<<a href="/compose?To=accountability%2dcross%2dcommunity%2dbounces@icann.org">accountability-cross-community-bounces@icann.org</a> on behalf of<br>
<a href="/compose?To=RPEREZGA@minetur.es">RPEREZGA@minetur.es</a>> wrote:<br>
<br>
<div class="mail-quote-collapse">>Dear Becky,<br>
><br>
>Your proposal establishes that there are situations where the GAC would<br>
>be excluded from participating in specific considerations, since it is<br>
>³unique² in its capacity to compel the Board to negociate, even if at the<br>
>end the Board is free to make their decision.<br>
><br>
>I kindly ask for clarification on the ³uniqueness² of the GAC, since<br>
>ICANN Bylaws Annex A Section 9 on GNSO PDP process establish that the<br>
>board needs a 2/3 majority to go against the GNSO recommendation approved<br>
>by supermajority AND that the Board shall engage in a ³discussion² with<br>
>the Council (letters c and d), that could end up again with another<br>
>voting from the Board to reject the new GNSO recommendation by 2/3.<br>
><br>
>In the same vein, as regards Annex B and the ccNSO PDP, the Board and the<br>
>Council shall discuss ³in good faith and in a timely and efficient<br>
>manner, to find a mutually acceptable solution³.<br>
><br>
>In conclusion, for the very same reason, namely avoid the ³two bites at<br>
>the apple² situation, it could be argued that if the GAC should be<br>
>singled out to be carved out, the terms for carving out other SO/ACs<br>
>should as well be established.<br>
><br>
>Looking forward to hearing others' views, and apologies in advance if I<br>
>have misunderstood the processes above described.<br>
><br>
>Best<br>
>Rafael<br>
><br>
><br>
>________________________________________<br>
>From: Perez Galindo, Rafael<br>
>Sent: 05 February 2016 22:31<br>
>To: Burr, Becky; Accountability Community<br>
>Subject: Re: [CCWG-ACCT] Responses to Rafael's Questions<br>
><br>
>Thank you Becky for kindly answering my questions, much appreciated.<br>
><br>
>I hope to get back to you with further comments as I proceed with<br>
>internal consultations.<br>
><br>
>I only would like to draw your attention now to the fact that your<br>
>proposal, in its broad scope now clearly defined (and apologies here if<br>
>some of us understood that you were referring to a limited scope), is<br>
>essentially different from the discussions on ST 18 that we all have been<br>
>having during the last year. This addition to the package is not related<br>
>to percentages nor thresholds anymore, nor how the Board may react to GAC<br>
>advice (remember this and only this was the reason why Steve del Bianco<br>
>put forward ST 18!!) , but goes far beyond, as it actually regulates the<br>
>access of the GAC to the EC.<br>
><br>
>For that reason, I believe it should be very carefully analyzed and<br>
>assessed, from an implementing and legal POV. Such a decision cannot be<br>
>taken in a rush, without considering its consequences and possible side<br>
>effects.<br>
><br>
>Best<br>
>Rafael<br>
><br>
><br>
>Sent from a mobile device. Please excuse any typos.<br>
>-------- Original message --------<br>
>From: "Burr, Becky"<br>
>Date:05/02/2016 19:04 (GMT+01:00)<br>
>To: Accountability Community<br>
>Subject: [CCWG-ACCT] Responses to Rafael's Questions<br>
><br>
>I am going to attempt to respond to Rafael¹s questions, below. This is a<br>
>long post, so apologies in advance.<br>
><br>
>I¹d like to start out by saying that my proposal does not in any way<br>
>prevent the GAC from participating in any community discussion<br>
>whatsoever, or from continuing to provide advice on public policy matters<br>
>whenever and however it chooses. Rather, the compromise would limit the<br>
>GAC¹s ability to participate as a decision-maker in the very limited<br>
>situation in which the community takes exception to the Board¹s<br>
>implementation of GAC Advice and a community discussion is initiated to<br>
>explore use of a community power to challenge the Board¹s action. Even<br>
>in those limited situations where the carve out would apply, the GAC is<br>
>still able to participate in discussion, to engage in advocacy, to<br>
>persuade, to issue more advice, etc. The only impact is that at the end<br>
>of the day the GAC would not count towards the thresholds necessary to<br>
>block or support exercise of the relevant power. So please, do not say<br>
>that anyone is trying to silence the GAC or to in any way limit its<br>
>current authority.<br>
><br>
>Rafael¹s questions appear in blue italic below, and my answers follow:<br>
><br>
>1. We have previously discussed it, but we still fail to understand why<br>
>this ³carve-out² is only applicable to the GAC. If this measure is<br>
>foreseen to avoid the ³two-bites-at-the-apple² situation, for instance<br>
>the GNSO is as well in a position of being ³judge and part² when it comes<br>
>to decisions of the Board based on a PDP. In these cases, the GNSO is<br>
>part (has proposed a policy and the Board has accepted it) and judge<br>
>(through its participation in the EC, it can participate through its vote<br>
>in the rejecting of the challenge to this policy). This situation is<br>
>unfair to the rest of SO/ACs. What are the reasons for such a privilege?<br>
>In this vein, although the GAC has a ³mutually agreeable procedure to TRY<br>
>to find a solution², it CANNOT force the Board to act according to its<br>
>advice, therefore a Board decision based on GAC Advice is as free as a<br>
>Board decision based on GNSO or CCNSO PDP or GNSO Guidance (all three<br>
>with a 2/3 threshold for rejection by ICANN Board). Why is the GAC<br>
>singled out then?<br>
><br>
>I have previously explained this, as have others on the calls and in the<br>
>chat. My previous response follows. The fact is that the Board¹s<br>
>obligation to work to try to find a mutually agreeable solution before<br>
>rejecting GAC Advice gives the GAC both a formidable and unique power to<br>
>stop a process in its tracks and compel the Board to negotiate. The fact<br>
>that in the end a mutually acceptable solution may not be found does not<br>
>change the nature of that power. And GAC advice is not constrained in<br>
>any material way it can involve any topic with ³public policy²<br>
>implications, and it can be issued at any time before, during, or after a<br>
>policy development process has concluded, and indeed midway during<br>
>implementation of such policy. No other SO or AC has that authority.<br>
>The GAC is singled out because it, and it alone, has this authority.<br>
><br>
>My previous response to this same question from Jorge follows:<br>
><br>
>Jorge asks why I am drawing a distinction between GAC Advice and the<br>
>output (e.g., a policy developed through a PDP) of a supporting<br>
>organization or this new ³GNSO Guidance." The differences between a PDP<br>
>(or Guidance on implementation of a PDP) and GAC Advice are both<br>
>structural and substantive. In short, the process for issuing GNSO<br>
>policy and guidance has built-in safeguards to prevent Mission creep and<br>
>promote transparency and public consultation. For many reasons,<br>
>including some that I consider entirely appropriate, that¹s not the case<br>
>with GAC Advice.<br>
><br>
>On the one hand, the GAC can give Advice on any topic it likes. Yes,<br>
>technically it must relate to ³public policy² - but as we know that is a<br>
>very broad concept. The GAC can also give that Advice at any time it<br>
>likes - before, during, or well after a PDP or even the Board¹s<br>
>acceptance of a PDP. There is no rule that says that GAC Advice must<br>
>relate to a topic within ICANN¹s Mission or that such Advice must be<br>
>consistent with ICANN¹s Bylaws. Both the flexibility with respect to<br>
>topic and timing mean that GAC Advice can be disruptive to ongoing policy<br>
>development and/or implementation. And, under Rec. 11 as currently<br>
>proposed, the Board must accept that Advice unless 66% of the Board<br>
>opposes it. That¹s the case no matter what that Advice is and even if a<br>
>majority of the Board thinks it would violate ICANN¹s Bylaws to implement<br>
>that Advice.<br>
><br>
>A PDP, on the other hand, takes place in a highly structured environment<br>
>that is strictly controlled both by subject matter and sequencing. Even<br>
>before the PDP really gets off the ground it is subject to review by<br>
>ICANN¹s General Counsel as to whether or not it is within ICANN¹s<br>
>Mission. That is a critical structural safeguard against scope creep<br>
>that distinguishes a PDP from GAC Advice.<br>
><br>
>The PDP process is highly structured, with numerous safeguards that<br>
>protect against scope creep and ensure transparency:<br>
><br>
>a. Final Issue Report requested by the Board, the GNSO Council<br>
>("Council") or Advisory Committee. The issue report must affirmatively<br>
>address the following issues:<br>
>€ The proposed issue raised for consideration;<br>
>€ The identity of the party submitting the request for the Issue Report;<br>
>€ How that party is affected by the issue, if known;<br>
>€ Support for the issue to initiate the PDP, if known;<br>
>€ The opinion of the ICANN General Counsel regarding whether the issue<br>
>proposed for consideration within the Policy Development Process is<br>
>properly within the scope of the ICANN's mission, policy process and more<br>
>specifically the role of the GNSO as set forth in the Bylaws.<br>
>€ The opinion of ICANN Staff as to whether the Council should initiate<br>
>the PDP on the issue<br>
>b. Formal initiation of the Policy Development Process by the Council;<br>
>c. Formation of a Working Group or other designated work method;<br>
>d. Initial Report produced by a Working Group or other designated work<br>
>method;<br>
>e. Final Report produced by a Working Group, or other designated work<br>
>method, and forwarded to the Council for deliberation;<br>
>f. Council approval of PDP Recommendations contained in the Final<br>
>Report, by the required thresholds;<br>
>g. PDP Recommendations and Final Report shall be forwarded to the Board<br>
>through a Recommendations Report approved by the Council]; and<br>
>h. Board approval of PDP Recommendations.<br>
><br>
><br>
>2. If this ³carve-out² were to be accepted, how would the exclusion of<br>
>the GAC from a community decision-making process be triggered? Who would<br>
>decide on such things? Who would control the legality of such a decision?<br>
>The carve-out refers generically to ³Board decisions² to ³implement GAC<br>
>advice². But we need to bear in mind that Board decisions very often rely<br>
>on many different inputs for any decision (a PDP, advice from advisory<br>
>committees, including the GAC, legal advice, etc.), and rarely only stem<br>
>exclusively from GAC advice. Would this ³carve-out² mean that where there<br>
>is a Board decision based on such multiple sources, only one of them<br>
>being a GAC advice, the GAC would be excluded from any community power<br>
>related to such a Board decision? How do we make sure that if such a<br>
>³carve-out² is accepted it has not these effects, and ONLY applies when<br>
>the Board acts based ONLY on GAC advice?<br>
><br>
>This seems fairly straightforward. The GAC keeps a ³scorecard² regarding<br>
>the Board¹s handling of GAC Advice. GAC Advice is listed and tracked.<br>
>ICANN tracks its responses formally. See, for example,<br>
><a href="https://www.icann.org/en/system/files/files/gac-advice-scorecard-07oct15-e" target="_blank" >https://www.icann.org/en/system/files/files/gac-advice-scorecard-07oct15-e</a><br>
>n.pdf. To the extent that other organizations have provided similar<br>
>advice, they have not had the opportunity to compel the Board to the<br>
>negotiation table with respect to that advice. In such cases, they could<br>
>still participate in the decision making process in an effort to block<br>
>exercise of a community power challenging the Board¹s implementation of<br>
>GAC Advice if, for example, they happened to agree with that Advice<br>
>and/or thought the way the Board implemented that Advice was appropriate,<br>
>etc.<br>
><br>
>3. What happens if a Board decision is based on GAC advice which in turn<br>
>is based on international law, relevant national law and/or important<br>
>reasons of public policy? We should remember that under Rec11 GAC will be<br>
>obliged to act under a ³no formal objection rule² (full consensus).<br>
>Should the community be able to overturn such a Board decision without<br>
>giving the possibility to the GAC to intervene in such a process (based<br>
>on a GAC consensus)?<br>
><br>
>It is not the case now, nor has it ever been the case that the position<br>
>of the GAC will prevail simply because it asserts that its views are<br>
>mandated by international law, relevant national law, and/or important<br>
>reasons of public policy.<br>
><br>
>Now, and in the future, the Board must make this call in the first<br>
>instance, subject to applicable law and in light of ICANN¹s Mission,<br>
>Commitments & Core Values. If enough of the community thinks the Board<br>
>got it wrong, it has the right to challenge the Board¹s implementation<br>
>action e.g., by rejecting a proposed Bylaws change, by bringing an IRP,<br>
>or ultimately, by recalling the Board. Throughout this, the Board, the<br>
>GAC, SOs, other ACs, etc. will have the opportunity to make their<br>
>respective cases. The thresholds for the exercise of community powers<br>
>have been deliberately set to require broad support.<br>
><br>
>Let me repeat again what I said at the outset nothing prevents the GAC<br>
>from ³intervening² through debate, discussion, persuasion, advice or any<br>
>other non-decisional role.<br>
>J. Beckwith Burr<br>
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer<br>
>1775 Pennsylvania Avenue NW, Washington D.C. 20006<br>
>Office: +1.202.533.2932 Mobile: +1.202.352.6367 /<br>
>neustar.biz<http://www.neustar.biz><br>
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