[CCWG-ACCT] Responses to Rafael's Questions
Carlos Raúl Gutiérrez G.
crg at isoc-cr.org
Fri Feb 5 19:10:46 UTC 2016
Thank you Becky for putting the proposals in the proper context!!
To the colleagues from Spain and Switzerland I beg to take a step back,
look at the whole picture and try to think as comprehensibly as Becky
has just done.
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 5 Feb 2016, at 10:03, Burr, Becky wrote:
> 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 /
> neustar.biz<http://www.neustar.biz>
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