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

Kavouss Arasteh kavouss.arasteh at gmail.com
Thu Mar 5 10:26:38 UTC 2015


Dear All,
As I mentioned before , we are now discussing some very delecate issue.
We need to seek views from GAC before proceeding further
Regards
Kavouss

2015-03-05 0:32 GMT+01:00 Jordan Carter <jordan at internetnz.net.nz>:

> 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
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>>>>> https://mm.icann.org/mailman/listinfo/wp1
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>>>>> WP1 mailing list
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>>>>>
>>>>
>>>>
>>>>
>>>>   --
>>>>   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
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>> 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
>
>
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