[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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