[CCWG-ACCT] Responses to Rafael's Questions

Perez Galindo, Rafael RPEREZGA at minetur.es
Sat Feb 6 10:29:14 UTC 2016

Dear Becky,

Your proposal establishes that there are situations where the GAC would be excluded from participating in specific considerations, since it is “unique” in its capacity to compel the Board to negociate, even if at the end the Board is free to make their decision. 

I kindly ask for clarification on the “uniqueness” of the GAC, since ICANN Bylaws Annex A Section 9 on GNSO PDP process establish that the board needs a 2/3 majority to go against the GNSO recommendation approved by supermajority AND that the Board shall engage in a “discussion” with the Council (letters c and d), that could end up again with another voting from the Board to reject the new GNSO recommendation by 2/3.

In the same vein, as regards Annex B and the ccNSO PDP, the Board and the Council shall discuss “in good faith and in a timely and efficient manner, to find a mutually acceptable solution“. 

In conclusion, for the very same reason, namely avoid the “two bites at the apple” situation, it could be argued that if the GAC should be singled out to be carved out, the terms for carving out other SO/ACs should as well be established.

Looking forward to hearing others' views, and apologies in advance if I have misunderstood the processes above described.


From: Perez Galindo, Rafael
Sent: 05 February 2016 22:31
To: Burr, Becky; Accountability Community
Subject: Re: [CCWG-ACCT] Responses to Rafael's Questions

Thank you Becky for kindly answering my questions, much appreciated.

I hope to get back to you with further comments as I proceed with internal consultations.

I only would like to draw your attention now to the fact that your proposal, in its broad scope now clearly defined (and apologies here if some of us understood that you were referring to a limited scope), is essentially different from the discussions on ST 18 that we all have been having during the last year. This addition to the package is not related to percentages nor thresholds anymore, nor how the Board may react to GAC advice (remember this and only this was the reason why Steve del Bianco put forward ST 18!!) , but goes far beyond, as it actually regulates the access of the GAC to the EC.

For that reason, I believe it should be very carefully analyzed and assessed, from an implementing and legal POV. Such a decision cannot be taken in a rush, without considering its consequences and possible side effects.


Sent from a mobile device. Please excuse any typos.
-------- Original message --------
From: "Burr, Becky"
Date:05/02/2016 19:04 (GMT+01:00)
To: Accountability Community
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 / neustar.biz<http://www.neustar.biz>

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