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

Mathieu Weill mathieu.weill at afnic.fr
Thu Mar 5 16:45:57 UTC 2015


Dear Colleagues,

Attached is the note I sent to Thomas Schneider, GAC Chair, as discussed.

Le 05/03/2015 16:26, Thomas.Schneider at bakom.admin.ch a écrit :
>
> Dear all
>
> i have taken note of the discussions in WP1 and I agree that this is 
> an important matter where we will have to have a discussion in the GAC.
>
> So I am waiting for the co-chairs of the CCWG to contact me with some 
> clear issues/questions that they would want us to discuss.
>
> And then we will come back with feedback from the GAC as soon as 
> possible.
>
> Best regards
>
> Thomas
>
> *Von:*Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Gesendet:* Donnerstag, 5. März 2015 11:27
> *An:* Jordan Carter; Schneider Thomas BAKOM; Olga Cavalli; Campillos 
> Gonzalez, Gema Maria; Manal Ismail; Jandyr Ferreira dos Santos Junior; 
> Michael.Niebel at ec.europa.eu
> *Cc:* Mathieu Weill; wp1 at icann.org
> *Betreff:* Re: [Party1] template - consensus defined for ICANN dealing 
> with GAC advice - draft1
>
> 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 
> <mailto: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
>     <mailto: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 <mailto: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
>                 <mailto: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 <mailto: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 <tel:%2B34%2091%203461544>
>                         Ê +34 91 3461577 <tel:%2B34%2091%203461577>
>                         rperezga at minetur.es <mailto:rperezga at minetur.es>
>
>
>                         -----Mensaje original-----
>                         De: wp1-bounces at icann.org
>                         <mailto:wp1-bounces at icann.org>
>                         [mailto: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 <mailto: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 <tel:%2B45%203529%201000>
>                         Direct: +45 35291308 <tel:%2B45%2035291308>
>                         E-mail: jukacz at erst.dk <mailto:jukacz at erst.dk>
>                         www.erhvervsstyrelsen.dk
>                         <http://www.erhvervsstyrelsen.dk>
>
>                         MINISTRY FOR BUSINESS AND GROWTH
>
>
>
>
>                         -----Oprindelig meddelelse-----
>                         Fra: wp1-bounces at icann.org
>                         <mailto:wp1-bounces at icann.org>
>                         [mailto: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 <mailto: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
>                         <tel:%2B44%2020%207645%203523>
>                            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
>
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>                         Peterborough PE1 1DA
>
>
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>
>
>                     -- 
>
>                     Jordan Carter
>
>                     Chief Executive
>                     *InternetNZ*
>
>                     04 495 2118 <tel:04%20495%202118> (office) | +64
>                     21 442 649 <tel:%2B64%2021%20442%20649> (mob)
>                     jordan at internetnz.net.nz
>                     <mailto:jordan at internetnz.net.nz>
>                     Skype: jordancarter
>
>                     /A better world through a better Internet /
>
>
>                     _______________________________________________
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>
>
>
>             -- 
>
>             Jordan Carter
>
>             Chief Executive
>             *InternetNZ*
>
>             04 495 2118 <tel:04%20495%202118> (office) | +64 21 442
>             649 <tel:%2B64%2021%20442%20649> (mob)
>             jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>             Skype: jordancarter
>
>             /A better world through a better Internet /
>
>             _______________________________________________
>
>             WP1 mailing list
>
>             WP1 at icann.org  <mailto:WP1 at icann.org>
>
>             https://mm.icann.org/mailman/listinfo/wp1
>
>         -- 
>
>         *****************************
>
>         Mathieu WEILL
>
>         AFNIC - directeur général
>
>         Tél:+33 1 39 30 83 06  <tel:%2B33%201%2039%2030%2083%2006>
>
>         mathieu.weill at afnic.fr  <mailto:mathieu.weill at afnic.fr>
>
>         Twitter : @mathieuweill
>
>         *****************************
>
>
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>
>
>
>     -- 
>
>     Jordan Carter
>
>     Chief Executive
>     *InternetNZ*
>
>     04 495 2118 (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649>
>     (mob)
>     jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>     Skype: jordancarter
>
>     /A better world through a better Internet /
>
>
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-- 
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************

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