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

[Jordan Carter]

Wonderful, thanks Mathieu for kicking this off. If I can offer any help as
rapporteur, let me know.

All - I think we should leave this discussion suspended while the direct
discussions Mathieu has begun on the co-chairs' behalf plays out.  Hope
that's OK.

best
Jordan

On 6 March 2015 at 01:45, Mathieu Weill <mathieu.weill at afnic.fr> wrote:

>  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
> <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>:
>
>  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
> Ê  +34 91 3461577
>   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 <%2B45%203529%201000>
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>
> 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
> <%2B44%2020%207645%203523>
>    Head of Public Affairs | Read the LINX Public Affairs blog  London
> Internet Exchange | http://publicaffairs.linx.net/
>
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>
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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 *
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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 *
>
>
>
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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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>
>
>
>
> --
>
> 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 *
>
>
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>
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>


-- 
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 *
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