[ST-WP] Draft analysis of public comments on Stress Tests, for ST Meeting | 11:00 UTC | 7 October

[Steve DelBianco]

As discussed on our previous Stress Test call, I drafted a new ‘rationale’ for Stress Test 18 and the proposed bylaws change.   Please review (attached and below) and we’ll discuss on our ST WP call this coming Tuesday.

Regards,
Steve

10-Oct proposal for updated description of Stress Test 18, including rationale requested by several GAC reps:

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.


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