[CCWG-ACCT] Responses to Rafael's Questions
Carlos Raúl Gutiérrez G.
crg at isoc-cr.org
Fri Feb 5 19:41:53 UTC 2016
Thank you Jorge!
We really have to (re)focus and discuss in a more constructive way.
Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 5 Feb 2016, at 11:40, Jorge.Cancio at bakom.admin.ch wrote:
> Dear Carlos
>
> Thanks for these points, but ee should not get personal.
>
> We have come s long way in the ccwg and we have established and
> settled clear principles of equal participation within the
> accountability framework.
>
> And now we are having a specific discussion on the carve-out proposed
> by Becky, to which we are saying that it is overbroad and should be
> circumscribed to its original remit (at least how we understood it).
>
> Let's have a rational and cool debate on these specifics.
>
> regards
>
> Jorge
>
> Von meinem iPhone gesendet
>
>> Am 05.02.2016 um 20:33 schrieb Carlos Raúl Gutiérrez G.
>> <crg at isoc-cr.org>:
>>
>> Dear Jorge,
>>
>> let me repeat my previous (before transition) points concerning the
>> issues on the table, as the reason for asking for a wider framework
>> for this discussion:
>>
>> * a clear difference between SOs and ACs remain. While the transition
>> discussion is focused on some kind of equal rights for all SO and AC
>> for specific accountabiliyt purposes, I still see big differences
>> between all of them, internally and externally. So I don’t think
>> that the tactic to play a GNSO vs. , while easy to explain to your
>> principals, is a particularly productive one in the CCWG.
>> ** we are coming out of a fresh experience of GAC advice to the Board
>> in terms of a few new gTLDs that may come back to us, even under the
>> new Accountability rules (.africa, .amazon, .wine, etc.). So lets not
>> forget that whatever is being discussed may come back to us in the
>> form of new responsibilities/liabilities from the previous round.
>> *** lets not forget the the NTIA assumption is that the USG will step
>> back vis a vis the community, but not to create more powers to
>> Governments altogether. So it may not be smart to fight for pyrric
>> objectives.
>>
>> So lets cool down and take a fresh approach.
>>
>> Best regards
>>
>>
>> Carlos Raúl Gutiérrez
>> +506 8837 7176
>> Skype: carlos.raulg
>>> On 5 Feb 2016, at 11:20, Jorge.Cancio at bakom.admin.ch wrote:
>>>
>>> Dear Carlos
>>>
>>> We are trying to have a discussion on substance, I feel, and I'm not
>>> seeing any argument addressing the concern that this "carve out" may
>>> be overbroad.
>>>
>>> As I said before, as there is standing GAC advice on ccTLDs and new
>>> gTLDs, GAC would be excluded from any community decision related to
>>> Board decisions on such topics, which leaves little room for GAC
>>> participation for the GAC in the community mechanism.
>>>
>>> I feel that if we do not return to a sensible discussion, based on
>>> Becky's original description of the carve-out, this amounts to GAC
>>> exclusion from any community decision making.
>>>
>>> Something which has no basis in prior agreements, in prior draft
>>> reports nor in the feedback from chartering organisations and public
>>> comment.
>>>
>>> best
>>>
>>> Jorge
>>>
>>>
>>> Von meinem iPhone gesendet
>>>
>>>> Am 05.02.2016 um 20:13 schrieb Carlos Raúl Gutiérrez G.
>>>> <crg at isoc-cr.org>:
>>>>
>>>> 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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