[CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion

Wed Nov 11 14:27:47 UTC 2015

Matthew

You are completely correct.  The suggestion to change the threshold for the
Board's response to GAC advice was proposed by the Board as a Bylaw
amendment and generally condemned by the community --- so much so that the
Board withdrew the proposal and the CEO then promised the Senate that the
suggestion was "off the table."

In Washington, we have a phrase to describe this tactic: "There are no
permanent defeats only temporary setbacks."  It reflects the decision of a
politician to revive a previously rejected proposal in the hopes of
achieving a different result in a different forum or at a different time.  

Cheers

Paul

Paul Rosenzweig

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From: Matthew Shears [mailto:mshears at cdt.org] 
Sent: Wednesday, November 11, 2015 7:16 AM
To: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>; Greg Shatan
<gregshatanipc at gmail.com>; Avri Doria <avri at acm.org>
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion

Hello Pedro

Please see in-line

On 11/11/2015 12:43, Pedro Ivo Ferraz da Silva wrote:

Dear Greg, Avri,  

Thanks for your comments. 

I believe some of the concerns below have been answered by Jorge, so I don't
want to repeat arguments here.

I would just like to comment on the Greg's statements that "the proposed
suggestion essentially turns the concerns of the rest of the community on
its head" and that  "Under this formulation, the GAC gets far more than it
has under the current bylaw".

The suggested language for the bylaws preserves the advisory nature of the
GAC with regards to the ICANN Board. It actually restricts it by imposing
the requirement of the advice having to be reached based on consensus - an
imposition that Brazil and other countries have expressed to be against but
for the sake of compromise have decided not to object.

With regards to raising to 2/3 majority the rejection threshold, this is by
no means an attempt to turn the GAC into a "co-equal (if not more than
equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition
targeted at recognizing the importance of public policy considerations
within ICANN's decision-making system.  

With regards to the above, and forgive me for asking as it is very difficult
to fully follow these discussions while at the IGF, but isn't the call for
raising the Board's rejection threshold of consensus advice to 2/3rds the
same issue that was opposed by much of the community back in 2014?

https://www.icann.org/public-comments/bylaws-amend-gac-advice-2014-08-15-en

If so, I am a little at a loss to understand the purpose of raising it again
in the context of these discussions, particularly as it has not been part of
the discussions in earlier versions of the proposal or in the pubic comment.

Many thanks for clarifying.

Matthew 

Regards,

Pedro

  _____  

De: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org> ] em nome de Greg
Shatan [gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> ]
Enviado: quarta-feira, 11 de novembro de 2015 5:04
Para: Avri Doria
Cc: accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> 
Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

At the risk of being impolitic, it seems to me that the proposed suggestion
essentially turns the concerns of the rest of the community on its head.
Under this formulation, the GAC gets far more than it has under the current
bylaw, and the concerns of the rest of the community are barely met, if at
all.  The first time the GAC provides advice using "majority consensus" (a
term sadly coined in the Executive Summary), we'll know that we got nothing
for our bargain.

As Avri touches on, the new proposed paragraph significantly misstates the
current obligations of the Board.  In addition to the misstatement Avri
cites, the paragraph attempts to codify the informal descriptor "due
deference" which is actually not what the current bylaws says. Furthermore,
the idea that if the Board decides not to follow GAC advice, the Bylaw
"requires finding mutually agreed solutions for implementation of that
advice" -- the very advice the Board has decided not to follow, is clearly
incorrect -- the Board's only obligation is to try in good faith to find a
mutually acceptable solution.  A requirement to "try" is not a requirement
to "find" and a "mutually acceptable solution" need not (and probably does
not) involve implementation of the GAC advice (except in a revised fashion
acceptable to the Board).

Others have commented on the "ask" for a 2/3 requirement to reject advice,
and I'll only say I agree with them.  This is entirely consistent with the
idea that the GAC is a co-equal (if not more than equal) policymaker with
the GNSO (and ccNSO), which in turn is entirely inconsistent with the
fundamental mechanics of ICANN and the "balance of power' among SO/ACs which
the Executive Summary boldly says we are not changing.

I have nothing but respect for the unique and critical role that the GAC
plays at ICANN, and respect for the GAC members as well, so please do not
see this as disrespect for either.  It is, however, a fairly complete
rejection of this particular proposal, as stated.  I may revisit it to see
what can be salvaged, but I've run out of steam for the night, given that
this is hour 20 since I awoke for our Tuesday meeting.

Greg

On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri at acm.org
<mailto:avri at acm.org> > wrote:

On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:

*/_if not followed, requires finding mutually agreed solutions for
implementation of that advice_/*

The current bylaws state:

> 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.

I am wondering whether the the words 'try , in good faith and in a
timely and efficient manner, ' were accidentally dropped from the newly
proposed formulation.

Form my perspective there is a world of difference between requiring a
genuine attempt to find a mutually acceptable solution and the
requirement for finding one.

In one case if the attempt fails, the Board is still free to make a  to
reject the advice.  In the later, the Board seems bound to find a
mutually agreed upon solution without the abilty to reject the advice if
no such solution can be found.

Can someone clarify this for me?  I accept that having missed a few
meeting lately, my understanding may be lagging, but that is my reason
for returning to the proposed and existing language.

thanks

avri

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Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology 
mshears at cdt.org <mailto:mshears at cdt.org> 
+ 44 771 247 2987 

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