[CCWG-ACCT] Creative solutions for Rec.11

Jorge.Cancio at bakom.admin.ch Jorge.Cancio at bakom.admin.ch
Sat Jan 30 22:56:39 UTC 2016

Dear Paul

I feel that the consensus requirement was accepted in Dublin as another element of the GAC position agreed then (together with the 2/3 and other elements).

And as you know we actively participate in discussions and contribute to common ground proposals as much as wecan.



Von meinem iPhone gesendet

> Am 30.01.2016 um 23:15 schrieb Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>:
> 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
> issue?
> And, since we are asking questions -- why didn't the government of
> Switzerland submit comments?
> 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 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
> group.
> 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
> Jorge
> 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
> happily
>> reading all of the government comments on CCWG-A Third Draft.    I may
> have
>> 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
> consensus.
>> 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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