[CCWG-ACCT] Creative solutions for Rec.11

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Sat Jan 30 22:15:17 UTC 2016

Sure Jorge

I'll happily agree with you that everyone who spoke to the issue of the
2/3rd vote that was a government (as opposed to the rest of the community)
supported it.

In return, ought you not to acknowledge that the entire opposition to the
full consensus/ST18 proposal is exactly 5 countries?  Nobody outside the GAC
affirmatively supports less than full consensus and many (most notably the
gNSO) actively opposes it.  Ought you not to acknowledge that the tiny
minority of 5 dissenters is who is blocking consensus on that aspect of the

And, since we are asking questions -- why didn't the government of
Switzerland submit comments?


Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key

-----Original Message-----
From: Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch] 
Sent: Saturday, January 30, 2016 4:40 PM
To: paul.rosenzweig at redbranchconsulting.com
Cc: egmorris1 at toast.net; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Creative solutions for Rec.11

Dear Paul

As I said I cannot and would not dare to speak for the GAC.

But in any group where expressing one's opinion is not compulsory, normally
a majority does remain silent and those with a strong sentiment speak out,
factually "representing" in some way the main currents of thought in such a

I guess this happens all across the board and in all constituencies, as it
happens in our CCWG, where some of us (to varying degrees) cope a lot of the
conversations while the majority of the +150 (?) members and participants
are normally silent.

So, I guess that based on this "voluntary" principle the data you mention on
the 2/3 element is significant, at least in showing that there seems not to
be any government considering that threshold as something they should object
(quite to the contrary it seems). And of the governments which participated
there is quite an interesting variety in regional terms.

best regards


Von meinem iPhone gesendet

> Am 30.01.2016 um 22:14 schrieb Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com>:
> Jorge
> I took you up on the implicit challenge and have just spent an hour
> reading all of the government comments on CCWG-A Third Draft.    I may
> missed a comment, but I don't think so.
> I can happily report the following to the community:
> 15 governments commented on the Third Draft report.  Of those 14 
> addressed Rec 11 and 7 also addressed Rec 1.  One government (Italy) 
> addressed only Rec 2.
> Of the 7 who addressed Rec 1:  4 governments supported GAC voting in 
> the EC (Brazil, Argentina, Japan, and NZ) though two (Japan and NZ) 
> expressed caution about this.  Two governments said GAC should be 
> advisory only
> (Ireland/Denmark) and one (UK) said that the decision should be up to 
> the GAC.
> Of the 14 who addressed Rec 11:
>        -- All who spoke to the issue supported the 2/3rd vote 
> rejection rule.  Some were silent
>        -- Eight governments  supported the current full consensus rule 
> (Australia, NZ, UK, Japan, Sweden, Ireland, Canada, and Denmark); five 
> opposed it (Brazil, France, Argentina, Portugal, India); one (Norway) 
> noted lack of GAC consensus.
> So my assessment is that a very small sample of 6 governments splits 
> 2-1 in favor of a GAC voting role in the EC and a somewhat larger 
> sample of 13 governments splits 8-5 in favor of ST18 and full consensus.
> To be honest, I think that doesn't tell us much.  There are 153 
> governments in the GAC.  A sample of 10% probably says nothing about 
> sentiment in that body.  Nonetheless the data speak for themselves at
least as far as they go.
> Paul
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
> -----Original Message-----
> From: Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]
> Sent: Saturday, January 30, 2016 3:04 PM
> To: egmorris1 at toast.net
> Cc: paul.rosenzweig at redbranchconsulting.com;
> accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Creative solutions for Rec.11
> Hi Ed
> I don't know the numbers by heart, but I'll guess they are on the 
> public comment sheet produced by staff (actually I just saw in their 
> ppt that out of 90 comments 17% come from govts).
> But let's not go down that road: if we count who participates and 
> extend it to other constituencies we will also see the "same faces" all
over again:
> that is a consequence of the principle of voluntary participation. 
> In the GAC this is "compensated" with our voluntary high consensus 
> threshold which requires to include any interested delegation into a
> regards
> Jorge
> Von meinem iPhone gesendet
>> Am 30.01.2016 um 20:54 schrieb Edward Morris <egmorris1 at toast.net>:
>> Hi Jorge,
>> Thanks for this.
>> I believe the GAC has around 140 members, give or take a few. As 
>> you've
> gone through all the public comments filed by governments would be so 
> kind as to us know how many governments actually filed public comments 
> and what percentage of GAC membership that represents?
>> Thanks,
>> Ed Morris
>> Sent from my iPhone
>>> On 30 Jan 2016, at 19:46, <Jorge.Cancio at bakom.admin.ch>
> <Jorge.Cancio at bakom.admin.ch> wrote:
>>> Dear Paul
>>> I cannot speak for the GAC of course, but the last consensus input 
>>> on
> ST18 we had was the Dublin Communique.
>>> The subsequent Rec 11 did not satisfy some governments, as they 
>>> basically
> thought that it did not comply with the "autonomy in defining 
> consensus"-element agreed in Dublin.
>>> This may be checked with the comments filed in the third public 
>>> comment
> period on the third draft report by governments.
>>> I think I have gone through all public comments filed by governments 
>>> and
> I'm not aware of any position rejecting or objecting to Rec 11 because 
> it would consider that it went "too far" i.e. because they would 
> actively disagree with the 2/3.
>>> Other colleagues may of course correct and/or complement me if I 
>>> have
> missed something.
>>> regards
>>> Jorge
>>> Von meinem iPhone gesendet
>>>> Am 30.01.2016 um 20:19 schrieb Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com>:
>>>> 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
>>>> Paul Rosenzweig
>>>> paul.rosenzweig at redbranchconsulting.com
>>>> O: +1 (202) 547-0660
>>>> M: +1 (202) 329-9650
>>>> VOIP: +1 (202) 738-1739
>>>> Skype: paul.rosenzweig1066
>>>> 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 mechanism.
>>>> 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.
>>>> --MM
>>>>> -----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
>>>> ratified).
>>>>> 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
>>>> solution.
>>>>> 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/
>>>>>             London Internet Exchange Ltd
>>>>>   Monument Place, 24 Monument Street, London EC3R 8AJ
>>>>>     Company Registered in England No. 3137929
>>>>>   Trinity Court, Trinity Street, Peterborough PE1 1DA
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