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

Greg Shatan gregshatanipc at gmail.com
Thu Mar 5 13:03:46 UTC 2015


 i will look forward to the views of the GAC.  I hope it is understood that
these proposals do not constrain the GAC's ability to have a lower level of
agreement before issuing advice (or even to have multiple levels of
agreement).  I believe that all we are saying is that the current level of
deference to GAC advice in the bylaws.is tied to the current level of
agreement used to provide GAC advice.  If there's a lower level of
agreement used by the GAC for a particular item of advice, it only stands
to reason that a lower level of deference should be expected in return.

This can already be seen in how the Board deals with GNSO policy
recommendations.  There are two different levels of agreement for policy
recommendations, and each has its own level of deference.  It should be the
same with GAC advice.

Greg

On Thu, Mar 5, 2015 at 5:26 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> 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
>>>>>> 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 *
>>
>>
>> _______________________________________________
>> 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
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/wp1/attachments/20150305/708ae639/attachment-0001.html>


More information about the WP1 mailing list