[CCWG-ACCT] Creative solutions for Rec.11

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Sat Jan 30 19:19:23 UTC 2016

May I ask a question -- is the GAC willing to disclose the current split of
opinion within the GAC regarding Rec 11?

The last we heard was that the GAC had not reached consensus on the
question.  One infers (I think infer is actually too soft a word but I use
it to be certain I am not overstating the case) that some members of the GAC
support Rec 11 as written and some do not.  One also suspects (though here I
am less certain) that some of the GAC members oppose Rec 11 because it does
not go far enough (they want Rec 11 plus more (e.g. removal of the consensus
language)) while others do not support Rec 11 because it goes too far (they
would be content with a majority requirement and enshrining the status quo
consensus rule in the bylaws).

One of the issues we have with the GAC is that unlike the other SO/ACs it is
uniquely non-transparent.  That means that the voices in our discussion that
are the most frequent can be thought to represent the GAC majority.  Perhaps
they are. Yet every time some of the less frequent voices from GAC speak in
this forum they seem much less strident and committed than do the more
frequent participants in our discussion.

I fear that the result of this is that we are misperceiving the GAC's true
intentions, or more accurately, misperceiving the actual split of opinion
within the GAC.  To be honest, if, in fact, it were the case that every
country in the world save my own were supporting Rec 11, I would be more
inclined to relinquish my objection.  But my strong suspicion is that this
is not the case.  

Put another way, some have recently said we are "disrespecting" the GAC or
ignoring its wishes.  But, as of now its wishes are radically unclear -- all
it says is "we have not reached consensus."  In the interests of clarifying
the nature of that lack of consensus, would the GAC be willing to disclose
its assessment of the relative support for Rec 11 and the relative support
for objections thereto?


Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
O: +1 (202) 547-0660
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Link to my PGP Key

-----Original Message-----
From: Mueller, Milton L [mailto:milton at gatech.edu] 
Sent: Saturday, January 30, 2016 1:50 PM
To: Malcolm Hutty <malcolm at linx.net>; Jorge.Cancio at bakom.admin.ch;
kdrazek at verisign.com
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Creative solutions for Rec.11

I'm sorry, Malcolm, but this is a bit too "creative." 

You are proposing to restructure the entire ICANN policy process and to
alter in a fairly fundamental way the relationship between GNSO and the GAC.
There is a lot of merit in your idea as a general procedural reform, but the
point of this exercise is to create accountability mechanisms that
substitute for the oversight of the USG, not to alter the policy development
process or to redesign all of ICANN.

I think Ed Morris's message was a more positive contribution that points the
way toward a solution. 
The problem is not the 2/3 threshold in isolation, the problem is that
certain aspects of the CCWG 3rd draft, when looked at in combination, are
changing the role of the GAC in ways greatly expand its power over the
policy process, because they retain and strengthen the privileges of its old
role while also changing its role by making it a part of the community

I agree with Ed: if GAC is not part of the community mechanism, and/or is
not exempted from the same reviews as other ACs and SOs, then the 2/3
threshold becomes much less of an issue. 

I agree with Becky's more modest proposal: if GAC is removed from the
community mechanism appeals that pertain to whether the board follows GAC
advice, then there is less worry about raising the threshold for board
rejection of GAC advice. 

I think we need to start from those propositions, not start redesigning the
policy process.


> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of 
> Malcolm Hutty
> Sent: Saturday, January 30, 2016 4:50 AM
> To: Jorge.Cancio at bakom.admin.ch; kdrazek at verisign.com
> Cc: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Creative solutions for Rec.11
> On 29/01/2016 21:24, Jorge.Cancio at bakom.admin.ch wrote:
> > it is a bit akward you would need to concede that you imply that 
> > without the 2/3 the GNSO would be able to support Rec 11.
> >
> > It gives an impression as if Rec 11 (without 2/3) would contain 
> > anything "that would need to be accepted", when as we all know Rec 
> > 11 (without 2/3) corresponds to 100% of the GNSO starting position.
> >
> > So there would be any concession. No aspect "in need to be accepted".
> >
> > Just a 100% win-situation for the GNSO.
> On 29/01/2016 22:01, Jorge.Cancio at bakom.admin.ch wrote:
> > I feel that at this critical juncture we all have to keep the whole 
> > picture in our heads, be creative (as Becky for instance) and look 
> > for a solution which may be acceptable across the community as a whole.
> The 2/3 rule is evidently unacceptable to the GNSO.
> Without that rule, Rec.11 would (it seems) be acceptable to them. 
> Jorge says "But this is their starting position, it would mean a 100% 
> win-situation for the GNSO". I might observe that the logic of that 
> seems to be that GNSO ought to have come to CCWG with a more extreme 
> initial position, so that it could settle on what it really wanted.
> Perhaps it will learn to adapt its negotiating tactics.
> However, I do agree with Jorge: we need to try to respect the need for 
> all parties to be seen to gain improvements from our changes. I would 
> therefore like us to take up his challenge to "be creative" in an 
> attempt to find a solution.
> Let us consider what the 2/3 rule attempts:
> - from a government point of view, it provides an assurance that GAC 
> advice will be given greater weight, affirming the importance of
government input.
> Such an assurance is necessary to them.
> - from a GNSO point of view, it ensures that the Board will 
> automatically follow GAC advice (except in very unusual circumstances) 
> transforming ICANN into a body which is led by government policy. Such 
> a transformation is unacceptable to them.
> With GNSO opposition, I believe we must accept that the 2/3 rule is 
> dead. But taking up Jorge's challenge, we must replace it not with 
> nothing, but with something creative that would offer in its place the 
> assurance to governments the 2/3 rule seeks to achieve, without 
> creating the transformation that the GNSO opposes.
> I think it would be useful if people come forward with ideas for 
> strengthening the input of governments without overbalancing the 
> decision-making process as the 2/3 rule does.
> I would therefore like to make the following suggestion of my own:
> * Remove the 2/3 rule; and
> * Provide that when providing advice on GNSO policy, GAC advice is 
> given directly to the GNSO (during the PDP) instead of to the Board, 
> (after the community consensus policy is finalised and ready to be
> Require that the GNSO consider any such GAC advice before adopting a 
> PDP policy. (This is conceptual: lawyers can wordsmith).
> The advantages of this proposal, as I see them, are as follows:
> - By accepting GAC advice into an earlier stage of the process, it 
> will be possible to incorporate it into the design of the policy, 
> rather than tacking it on as an adjunct. GAC advice will therefore be 
> more effective and the ultimate outcome more likely to reflect GAC
expectations than at present.
> - By incorporating the fruits of GAC advice into the community 
> proposal, it will also benefit from the rule that the Board is 
> expected to accept GNSO community consensus policy proposals, and can 
> only reject them by
> 2/3 supermajority.
> - By including the GAC in the policy-development process we strengthen 
> the GAC's role as a part of our community, reducing the "them and us"
> tensions and helping to ensure that GAC concerns are given full 
> respect at every level of the organisation.
> Most importantly, this suggestions aims to strengthen the GAC's role 
> in a manner that also strengthens the multi-stakeholder policy 
> development process, rather than standing in tension with it. It can 
> therefore be seen not as a zero-sum compromise but a true win-win
> I look forward to your thoughts,
> Malcolm.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog  London 
> Internet Exchange | http://publicaffairs.linx.net/
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