[CCWG-ACCT] Responses to Rafael's Questions

Fri Feb 5 18:34:49 UTC 2016

Very much +1.  Well said Becky.

P

Paul Rosenzweig

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From: Burr, Becky [mailto:Becky.Burr at neustar.biz] 
Sent: Friday, February 5, 2016 1:03 PM
To: Accountability Community <accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] Responses to Rafael's Questions

I am going to attempt to respond to Rafael's questions, below.  This is a
long post, so apologies in advance.  

I'd like to start out by saying that my proposal does not in any way prevent
the GAC from participating in any community discussion whatsoever, or from
continuing to provide advice on public policy matters whenever and however
it chooses.  Rather, the compromise would limit the GAC's ability to
participate as a decision-maker in the very limited situation in which the
community takes exception to the Board's implementation of GAC Advice and a
community discussion is initiated to explore use of a community power to
challenge the Board's action.  Even in those limited situations where the
carve out would apply, the GAC is still able to participate in discussion,
to engage in advocacy, to persuade, to issue more advice, etc.  The only
impact is that at the end of the day the GAC would not count towards the
thresholds necessary to block or support exercise of the relevant power.  So
please, do not say that anyone is trying to silence the GAC or to in any way
limit its current authority.  

Rafael's questions appear in blue italic below, and my answers follow:

1. We have previously discussed it, but we still fail to understand why this
"carve-out" is only applicable to the GAC. If this measure is foreseen to
avoid the "two-bites-at-the-apple" situation, for instance the GNSO is as
well in a position of being "judge and part" when it comes to decisions of
the Board based on a PDP. In these cases, the GNSO is part (has proposed a
policy and the Board has accepted it) and judge (through its participation
in the EC, it can participate through its vote in the rejecting of the
challenge to this policy). This situation is unfair to the rest of SO/ACs.
What are the reasons for such a privilege? In this vein, although the GAC
has a "mutually agreeable procedure to TRY to find a solution", it CANNOT
force the Board to act according to its advice, therefore a Board decision
based on GAC Advice is as free as a Board decision based on GNSO or CCNSO
PDP or GNSO Guidance (all three with a 2/3 threshold for rejection by ICANN
Board). Why is the GAC singled out then?

I have previously explained this, as have others on the calls and in the
chat.  My previous response follows.  The fact is that the Board's
obligation to work to try to find a mutually agreeable solution before
rejecting GAC Advice gives the GAC both a formidable and unique power to
stop a process in its tracks and compel the Board to negotiate.  The fact
that in the end a mutually acceptable solution may not be found does not
change the  nature of that power.  And GAC advice is not constrained in any
material way - it can involve any topic with "public policy" implications,
and it can be issued at any time before, during, or after a policy
development process has concluded, and indeed midway during implementation
of such policy.  No other SO or AC has that authority.   The GAC is singled
out because it, and it alone, has this authority. 

My previous response to this same question from Jorge follows:

Jorge asks why I am drawing a distinction between GAC Advice and the output
(e.g., a policy developed through a PDP) of a supporting organization or
this new "GNSO Guidance." The differences between a PDP (or Guidance on
implementation of a PDP) and GAC Advice are both structural and substantive.
In short, the process for issuing GNSO policy and guidance has built-in
safeguards to prevent Mission creep and promote transparency and public
consultation.  For many reasons, including some that I consider entirely
appropriate, that's not the case with GAC Advice.  

On the one hand, the GAC can give Advice on any topic it likes.  Yes,
technically it must relate to "public policy" - but as we know that is a
very broad concept.  The GAC can also give that Advice at any time it likes
- before, during, or well after a PDP or even the Board's acceptance of a
PDP.     There is no rule that says that GAC Advice must relate to a topic
within ICANN's Mission or that such Advice must be consistent with ICANN's
Bylaws.  Both the flexibility with respect to topic and timing mean that GAC
Advice can be disruptive to ongoing policy development and/or
implementation. And, under Rec. 11 as currently proposed, the Board must
accept that Advice unless 66% of the Board opposes it.  That's the case no
matter what that Advice is and even if a majority of the Board thinks it
would violate ICANN's Bylaws to implement that Advice.  

A PDP, on the other hand, takes place in a highly structured environment
that is strictly controlled both by subject matter and sequencing.  Even
before the PDP really gets off the ground it is subject to review by ICANN's
General Counsel as to whether or not it is within ICANN's Mission.  That is
a critical structural safeguard against scope creep that distinguishes a PDP
from GAC Advice.  

The PDP process is highly structured, with numerous safeguards that protect
against scope creep and ensure transparency:

a.  Final Issue Report requested by the Board, the GNSO Council ("Council")
or Advisory Committee. The issue report must affirmatively address the
following issues:

The proposed issue raised for consideration;

The identity of the party submitting the request for the Issue Report;

How that party is affected by the issue, if known;

Support for the issue to initiate the PDP, if known;

The opinion of the ICANN General Counsel regarding whether the issue
proposed for consideration within the Policy Development Process is properly
within the scope of the ICANN's mission, policy process and more
specifically the role of the GNSO as set forth in the Bylaws.

The opinion of ICANN Staff as to whether the Council should initiate the PDP
on the issue

b. Formal initiation of the Policy Development Process by the Council;

c.  Formation of a Working Group or other designated work method;

d.  Initial Report produced by a Working Group or other designated work
method;

e.  Final Report produced by a Working Group, or other designated work
method, and forwarded to the Council for deliberation;

f.  Council approval of PDP Recommendations contained in the Final Report,
by the required thresholds;

g.  PDP Recommendations and Final Report shall be forwarded to the Board
through a Recommendations Report approved by the Council]; and

h.  Board approval of PDP Recommendations.

2. If this "carve-out" were to be accepted, how would the exclusion of the
GAC from a community decision-making process be triggered? Who would decide
on such things? Who would control the legality of such a decision? The
carve-out refers generically to "Board decisions" to "implement GAC advice".
But we need to bear in mind that Board decisions very often rely on many
different inputs for any decision (a PDP, advice from advisory committees,
including the GAC, legal advice, etc.), and rarely only stem exclusively
from GAC advice. Would this "carve-out" mean that where there is a Board
decision based on such multiple sources, only one of them being a GAC
advice, the GAC would be excluded from any community power related to such a
Board decision? How do we make sure that if such a "carve-out" is accepted
it has not these effects, and ONLY applies when the Board acts based ONLY on
GAC advice?

This seems fairly straightforward.  The GAC keeps a "scorecard" regarding
the Board's handling of GAC Advice.  GAC Advice is listed and tracked.
ICANN tracks its responses formally.  See, for example,
https://www.icann.org/en/system/files/files/gac-advice-scorecard-07oct15-en.
pdf.    To the extent that other organizations have provided similar advice,
they have not had the opportunity to compel the Board to the negotiation
table with respect to that advice.  In such cases, they could still
participate in the decision making process in an effort to block exercise of
a community power challenging the Board's implementation of GAC Advice if,
for example, they happened to agree with that Advice and/or thought the way
the Board implemented that Advice was appropriate, etc.  

3. What happens if a Board decision is based on GAC advice which in turn is
based on international law, relevant national law and/or important reasons
of public policy? We should remember that under Rec11 GAC will be obliged to
act under a "no formal objection rule" (full consensus). Should the
community be able to overturn such a Board decision without giving the
possibility to the GAC to intervene in such a process (based on a GAC
consensus)?

It is not the case now, nor has it ever been the case that the position of
the GAC will prevail simply because it asserts that its views are mandated
by international law, relevant national law, and/or important reasons of
public policy.  

Now, and in the future, the Board must make this call in the first instance,
subject to applicable law and in light of ICANN's Mission, Commitments &
Core Values.  If enough of the community thinks the Board got it wrong, it
has the right to challenge the Board's implementation action - e.g., by
rejecting a proposed Bylaws change, by bringing an IRP, or ultimately, by
recalling the Board.  Throughout this, the Board, the GAC, SOs, other ACs,
etc. will have the opportunity to make their respective cases.  The
thresholds for the exercise of community powers have been deliberately set
to require broad support.    

Let me repeat again what I said at the outset - nothing prevents the GAC
from "intervening" through debate, discussion, persuasion, advice or any
other non-decisional role.  

J. Beckwith Burr 
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 /  <http://www.neustar.biz>
neustar.biz

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