[Party1] template - consensus defined for ICANN dealing with GAC advice - draft1

Jordan Carter jordan at internetnz.net.nz
Wed Mar 4 23:32:49 UTC 2015


Dear Mathieu

To confirm we at WP1 today agreed to halt any further consideration of
this, pending your consultation with the GAC.

best
Jordan


On 5 March 2015 at 00:27, Mathieu Weill <mathieu.weill at afnic.fr> wrote:

>  Dear colleagues,
>
> We are obviously on sensitive grounds here. We are all well aware that to
> reach our goal, to enhance Icann's accountability in the context of a
> successful transition, we need to ensure :
> - that we have consensus across all SO/ACs
> - that we ensure the absence of capture within Icann.
>
> This discussion started from the stress test which is precisely defined at
> ensuring that Icann is not captured by governments or a group of
> governments. The proposal being currently discussed suggests that Icann
> Bylaws incorporate a specific decision making rule (consensus) for GAC
> Advice to get special deferrence by the Board. Feedback from some GAC
> members in the CCWG tend to demonstrate that the proposal would not get
> full consensus at this point.
>
> We need to recognize that the proposal is consistent with current practice
> of the GAC, but also that this current practice has been discussed in the
> past within the GAC, and appears to be a point of discussion between GAC
> members lately. Consequently, we as CCWG run the risk of stepping into an
> internal GAC discussion without properly understanding the specific
> context.
>
> The co-chairs will engage the GAC Chair, Thomas Schneider, on the issue
> shortly, as discussed earlier within the CCWG. before doing that I would
> appreciate your insights on some aspects of the current proposal :
> - would other definitions of decision making, for example supermajority
> requirements such as those existing for some gNSO decisions, provide
> sufficient guarantees against capture (2/3 ; 3/4; ...) ? In this case they
> could replace the proposed definition of consensus ?
> - how does the current proposal (consensus being defined as "no formal
> objection") prevent from one single government "capturing" GAC "special
> deferrence" advice ? Could that not be considered by some as capture
> (within the GAC) by one government over the "public policy" perspective
> that the GAC brings into Icann.
>
> Thanks for your considered responses, and for the very useful debate on
> this topic so far.
>
> Best,
> Mathieu
>
>
> Le 04/03/2015 07:14, Jordan Carter a écrit :
>
>  Dear all, dear Olga,
>
>  Apologies for the delay in replying, but here we go:
>
> On 3 March 2015 at 23:35, Olga Cavalli <olgacavalli at gmail.com> wrote:
>
>> Dear Jordan,
>>
>>  could you clarify this sentence please:
>>
>>  "I know that the GAC could do this: if it changed the Operating
>> Principle 47 to allow advice by majority vote, this would effectively
>> increase governmental influence in ICANN"
>>
>>
>  In short: if GAC can choose to decide advice more easily, and ICANN is
> obliged to duly take GAC advice into account, then GAC can choose to
> increase its influence in ICANN. GAC should not be able to choose to do
> this on its own, is the argument here.
>
>  Here's the long version:
>
>  At the present time GAC advice triggers an obligation on ICANN to duly
> take that advice into account, as per the bylaws:
>
>  *Article IX Section 2 Part 1*
>
>  *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. 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. *
>
>  This obligation to look at the advice, and to try and find a mutual
> solution, is what gives GAC its influence in ICANN - its advice cannot be
> ignored by the Board.
>
>  The GAC in its Operating Principles (#47) specifies that advice will be
> made by consensus.
>
>  GAC can change its operating principles.
>
>  If - hypothetically - GAC did change its operating principles to allow
> it to give advice to ICANN on a non-consensus basis - perhaps by voting -
> then it would be _lowering the threshold_ at which advice could be given.
>
>  The *current* combination of ICANN having to give due heed to GAC
> advice, and the consensus nature of that advice, is what gives the GAC its
> *current* level of structural influence in ICANN.
>
>  It seems to me that* if the threshold was lowered* for establishing such
> advice, then that influence would be *increased*. Governments would have
> more influence in ICANN, because it would be easier to give advice on more
> topics without the onerous requirement of consensus being arrived at.
>
>  In the other direction, if the threshold for advice was *made higher*
> (e.g. if GAC - hypothetically - changed its operating principles so that it
> could only offer consensus advice after agreeing it was consensus at three
> GAC meetings in a row, with a quorum of 100 governments participating),
> then the level of influence would be *reduced*.
>
>  The logic behind this proposed change to the ICANN bylaws is that the
> *current* level of GAC advice in the ICANN environment should be
> maintained, and that any changes to it would need to be agreed not just by
> GAC (which is the case today), but by the whole community through a change
> to the bylaws.
>
>
>  I apologise that this is a long reply, but I cannot answer clearly more
> briefly.
>
>
>  Thanks
> Jordan
>
>
>   Best regards
>> Olga
>>
>> 2015-03-03 10:28 GMT-03:00 Jordan Carter <jordan at internetnz.net.nz>:
>>
>>  Thank you very much Julia and Rafael for these inputs. It is very
>>> helpful in further developing this proposal.
>>>
>>>  I think there is an objective question we need an answer to, which is:
>>>
>>>  *Which, if any, SOs and ACs have the ability to change their internal
>>> rules or procedures in a way that affects the whole ICANN community?*
>>>
>>>  From where I sit, I know that the GAC could do this: if it changed the
>>> Operating Principle 47 to allow advice by majority vote, this would
>>> effectively increase governmental influence in ICANN and is solely a GAC
>>> decision.
>>>
>>>  I do not know whether other ACs can do this, because I do not know
>>> whether the bylaws give a special privileged status to their advice similar
>>> to the status they give to GAC advice.
>>>
>>>  I do not know whether other SOs can do this.
>>>
>>>  I think in the ccNSO there is no advice provision, and in terms of
>>> policymaking, all the rules are set out in the PDP which is part of the
>>> bylaws. So any change for ccNSO influence is a bylaws change, as far as I
>>> know.
>>>
>>>  If we have a clearer position of this, it would be helpful.
>>>
>>>  *Are ICANN staff able to provide this information?*
>>>
>>>  *Is any volunteer member of the WP able to provide this information?*
>>>
>>>
>>>  I think if we know the answer, we will have a better basis to proceed.
>>>
>>>  My initial thought is that if it is only GAC that has this ability,
>>> then that isn't something that should be maintained, because one of the key
>>> criteria for the IANA stewardship transition that NTIA has set out is that
>>> ICANN should not be subject to *governmental* control in future. An
>>> unlimited ability for governments to increase their influence in ICANN at
>>> their own discretion could conflict with that requirement, and mean the
>>> IANA stewardship transition fails.
>>>
>>>  That's why resolving this in some way is part of WorkStream 1 - to be
>>> done to allow transition to proceed.
>>>
>>>
>>>  Looking forward to more discussions!
>>>
>>>  bests
>>>  Jordan
>>>
>>>
>>> On 3 March 2015 at 21:36, Perez Galindo, Rafael <RPEREZGA at minetur.es>
>>> wrote:
>>>
>>>> Dear All
>>>>
>>>> Spain fully concurs with the views expressed by Denmark.
>>>>
>>>> While understanding the need to avoid capture, no proposal should
>>>> preempt the way in which a Committee makes decisions, which is what this
>>>> idea would mean in practice by compelling the GAC to stick to the consensus
>>>> rule if it wants the Board to duly take into account its advice.
>>>>
>>>> This proposal goes beyond the scope of this CCWG unless we engage in
>>>> discussion of procedures in all relevant SOs/ACs, as well.
>>>>
>>>> At any rate, such a proposal would strongly affect the GAC role and
>>>> should request explicit consent from the GAC prior to its inclusion in the
>>>> report.
>>>>
>>>> Best regards
>>>>
>>>> Rafael Pérez Galindo
>>>> S. G. de Servicios de la Sociedad de la Información
>>>> Secretaría de Estado de Telecomunicaciones y para la Sociedad de la
>>>> Información
>>>> MINISTERIO DE INDUSTRIA, ENERGÍA y TURISMO
>>>>    c/ Capitán Haya, 41 Pta. 6ª Despacho 6.10 (28020 Madrid, España)
>>>>   +34 91 3461544 <%2B34%2091%203461544>
>>>>   +34 91 3461577 <%2B34%2091%203461577>
>>>>   rperezga at minetur.es
>>>>
>>>>
>>>> -----Mensaje original-----
>>>> De: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] En nombre de
>>>> Julia Katja Wolman
>>>> Enviado el: martes, 03 de marzo de 2015 12:53
>>>> Para: wp1 at icann.org
>>>> Asunto: Re: [Party1] template - consensus defined for ICANN dealing
>>>> with GAC advice - draft1
>>>>
>>>> Dear Malcolm, colleagues,
>>>>
>>>> This is indeed an interesting discussion, which is likely to generate
>>>> some more comments from the government side.
>>>>
>>>> From our (DK) point of view we fully understand the need to have a
>>>> stress test for such a situation, including mitigating capture, but it is
>>>> our general view that any such proposal should not lower the current
>>>> threshold for the obligation of the ICANN Board to duly taking into account
>>>> GAC advice.
>>>>
>>>> With regard to Malcolm's suggestion below, we believe the text should
>>>> not be split into two. To clarify: In practice, the example you present
>>>> below where the other governments would be "indifferent" actually means
>>>> that the other governments actively chose not to actively support that
>>>> specific issue, for different reasons, and consequently there would be
>>>> consensus on advancing that specific issue as GAC advice. We would also
>>>> like to underline that reaching consensus among governments is not an easy
>>>> task and is a process that requires deliberations and compromises.
>>>> Therefore, we would like keep the text from the existing consensus rules in
>>>> the GAC's Operating Principles.
>>>>
>>>> Moreover with regard to the template, there may be situations where the
>>>> GAC could not give consensus advice to the Board on a specific issue
>>>> because of opposition from one government but the general view could still
>>>> be in the benefit of the public. The opposite situation could be
>>>> interpreted so that a non-consensus advice always would be contrary to the
>>>> public benefit/interest.
>>>>
>>>> Consequently in the attached document we suggest to amend the following
>>>> paragraph:
>>>>
>>>>  "Primarily this purpose:
>>>> ·       Ensure decisions are for benefit of the public, not just for a
>>>> particular set of stakeholders"
>>>>
>>>> to
>>>>
>>>> "Primarily this purpose:
>>>> .     Avoid capture of a particular set of interests"
>>>>
>>>>
>>>> Best regards,
>>>>
>>>> Julia
>>>>
>>>>
>>>> Julia Katja Wolman
>>>>
>>>> DANISH BUSINESS AUTHORITY
>>>>
>>>> Dahlerups Pakhus
>>>> Langelinie Allé 17
>>>> DK-2100 København Ø
>>>> Telephone: +45 3529 1000
>>>> Direct: +45 35291308
>>>> E-mail: jukacz at erst.dk
>>>> www.erhvervsstyrelsen.dk
>>>>
>>>> MINISTRY FOR BUSINESS AND GROWTH
>>>>
>>>>
>>>>
>>>>
>>>> -----Oprindelig meddelelse-----
>>>> Fra: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] På vegne af
>>>> Malcolm Hutty
>>>> Sendt: 2. marts 2015 12:38
>>>> Til: Kavouss Arasteh; Jordan Carter
>>>> Cc: wp1 at icann.org
>>>> Emne: Re: [Party1] template - consensus defined for ICANN dealing with
>>>> GAC advice - draft1
>>>>
>>>>
>>>>
>>>> On 01/03/2015 08:01, Kavouss Arasteh wrote:
>>>> > I understand from the draft that therte would be only "CONSENSUS
>>>> ADVICE"
>>>> > from GAC to ICANN Board
>>>> > However, today, GAC could advise the ICANN Board with advice on which
>>>> > no consensus is reached and that is an aimportant elements on which
>>>> > the system is working.
>>>> > There are several examples of such kind of advice.
>>>>
>>>> Absolutely, this is an important point. It is of course important that
>>>> the Board receive input from individual governments as well as other
>>>> stakeholders. The GAC has sometimes found it convenient to convey such
>>>> input through consensus documents such as the communique. When it does so
>>>> this essentially means "We have no consensus on X, but some of our members
>>>> would like to express their own view to you, and we are agreed that you
>>>> should be aware of their view".
>>>>
>>>> This is entirely appropriate. At the same time, it is important to be
>>>> able to distinguish between a view that has commanded a consensus in the
>>>> GAC and one which does not; the bylaws provides for special weight to be
>>>> given to GAC views, and that surely means the former rather than the
>>>> latter. This template simply aims to clarify that.
>>>>
>>>> As a small tweak, I wonder whether the template would be improved by
>>>> spltting the test into two heads ("general agreement" AND "the absence of
>>>> formal objection", as follows:
>>>>
>>>> "Consensus advice of the Governmental Advisory Committee on public
>>>> policy matters shall be duly taken into account, both in the formulation
>>>> and adoption of policies, where consensus is understood to mean the
>>>> practice of adopting decisions by general agreement and the absence of any
>>>> formal objection.  [...continues unchanged]"
>>>>
>>>> The aim of this change is to address the position where one government
>>>> raises an issue of interest to them only, and other governments are
>>>> indifferent. It seems to me if only one government holds a position, and
>>>> the others state that they have no view, this doesn't really constitute a
>>>> consensus position, and ought not to be treated as such.
>>>>
>>>> Of course, governments that were largely disinterested would still be
>>>> free to give their positive support anyway, perhaps out of comity, and so
>>>> to form a consensus. This change would merely say that input would only be
>>>> treated as GAC consensus advice if they chose to do so.
>>>>
>>>> Malcolm.
>>>> --
>>>>             Malcolm Hutty | tel: +44 20 7645 3523
>>>>    Head of Public Affairs | Read the LINX Public Affairs blog  London
>>>> Internet Exchange | http://publicaffairs.linx.net/
>>>>
>>>>                  London Internet Exchange Ltd
>>>>            21-27 St Thomas Street, London SE1 9RY
>>>>
>>>>          Company Registered in England No. 3137929
>>>>        Trinity Court, Trinity Street, Peterborough PE1 1DA
>>>>
>>>>
>>>> _______________________________________________
>>>> WP1 mailing list
>>>> WP1 at icann.org
>>>> https://mm.icann.org/mailman/listinfo/wp1
>>>> _______________________________________________
>>>> WP1 mailing list
>>>> WP1 at icann.org
>>>> https://mm.icann.org/mailman/listinfo/wp1
>>>>
>>>
>>>
>>>
>>>   --
>>>   Jordan Carter
>>>
>>> Chief Executive
>>> *InternetNZ*
>>>
>>> 04 495 2118 (office) | +64 21 442 649 (mob)
>>> jordan at internetnz.net.nz
>>> Skype: jordancarter
>>>
>>> *A better world through a better Internet *
>>>
>>>
>>> _______________________________________________
>>> WP1 mailing list
>>> WP1 at icann.org
>>> https://mm.icann.org/mailman/listinfo/wp1
>>>
>>>
>>
>
>
>  --
>   Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
>
> *A better world through a better Internet *
>
>
>
> _______________________________________________
> WP1 mailing listWP1 at icann.orghttps://mm.icann.org/mailman/listinfo/wp1
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>
> _______________________________________________
> WP1 mailing list
> WP1 at icann.org
> https://mm.icann.org/mailman/listinfo/wp1
>
>


-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/wp1/attachments/20150305/deb2f7c1/attachment-0001.html>


More information about the WP1 mailing list