FINAL VERSION TO BE SUBMITTED IF RATIFIED
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FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC
The At-Large Advisory Committee (ALAC) welcomes the opportunity to comment on the proposed Bylaws changes regarding consideration of Governmental Advisory Committee (GAC) advice, and hereby submits the following as a formal statement to the Board:
1.The ALAC salutes the Board’s continued effort on the implementation of the ATRT1 and ATRT2 recommendations, specifically recommendation 11 of the ATRT1 and 6.5 of the ATRT2, which read as follows:
ATRT1 Recommendation 11
The Board and the GAC should work together to have the GAC advice provided and considered on a more timely basis. The Board, acting through the GAC-Board joint working group, should establish by March 2011 a formal, documented process by which the Board responds to GAC advice. This process should set forth how and when the Board will inform the GAC, on a timely basis, whether it agrees or disagrees with the advice and will specify what details the Board will provide to the GAC in circumstances where it disagrees with the advice. This process should also set forth the procedures by which the GAC and the Board will then “try in good faith and in a timely efficient manner to find a mutually acceptable solution.” This process must take into account the fact that the GAC meets face-to-face only three times a year and should consider establishing other mechanisms by which the Board and the GAC can satisfy the Bylaw provisions relating to GAC advice.
ATRT2 Recommendation 6.5
The Board should propose and vote on appropriate bylaw changes to formally implement the documented process for Board-GAC bylaws consultation as developed by the BGRI working group as soon as practicable (see ATRT1 Recommendation 11).
2. Notwithstanding the aforementioned positive sign of the Board’s commitment with the ICANN community, the ALAC is concerned that the proposed Bylaws changes regarding consideration of GAC advice by the Board may pose a threat to equal footing between the different groups that conform the ICANN community and derive in an unbalanced weight to the GAC’s advice compared to that of the other ACs or the policies proposed by each of the SOs.
3. Moreover, the ALAC observes a trend in the Internet Governance ecosystem that tends to push towards giving increased power to governments. This would not only go against the multi-stakeholder model but wouldn’t comply with what the NTIA has stated as principles for the transition of the stewardship of the IANA functions. The proposed Bylaws changes regarding consideration of GAC advice would add to this trend that we consider undesirable.
4. Considering that the BGRI has already designed a “Process for consultations between the ICANN Board of Directors (“Board”) and the Governmental Advisory Committee (“GAC”), including those required pursuant to Article XI, Section 2.1.j, of the ICANN Bylaws” and said process establishes a transparent, efficient and expedite method to either clarify the GAC advice to the Board; oblige the Board to provide reasonable detail on why it would take action not consistent with GAC advice; reverse the intended Board action or take mitigating action, the ALAC calls the Board to reconsider the proposed bylaws changes regarding consideration of GAC advice and continue to foster equal footing among all participants of the ICANN community.
5. The ALAC supports an improved role for all Advisory committees. In support of this principle, if the Board is to implement this Bylaw change, the ALAC advises the Board to fully implement recommendation 9.1 of ATRT2 in the same round of Bylaw changes. It reads:
ATRT2 Recommendation 9.1
ICANN Bylaws Article XI should be amended to include the following language to mandate Board Response to Advisory Committee Formal Advice:
The ICANN Board will respond in a timely manner to formal advice from all Advisory Committees, explaining what action it took and the rationale for doing so.
This would preserve the delicate balance of advice coming from the ALAC, SSAC and RSSAC alongside the GAC. The ALAC is confident that the Board will continue to implement the recommendations of the ATRT1 and ATRT2 in a way that safeguards the principles of the multi-stakeholder model, more specifically those that help bring balance among participants.
PENULTIMATE FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC
The At-Large Advisory Committee (ALAC) welcomes the opportunity to comment on the proposed Bylaws changes regarding consideration of Governmental Advisory Committee (GAC) advice, and hereby submits the following as a formal statement to the Board:
1.The ALAC salutes the Board’s continued effort on the implementation of the ATRT1 and ATRT2 recommendations, specifically recommendation 11 of the ATRT1 and 6.5 of the ATRT2, which read as follows:
ATRT1 Recommendation 11
The Board and the GAC should work together to have the GAC advice provided and considered on a more timely basis. The Board, acting through the GAC-Board joint working group, should establish by March 2011 a formal, documented process by which the Board responds to GAC advice. This process should set forth how and when the Board will inform the GAC, on a timely basis, whether it agrees or disagrees with the advice and will specify what details the Board will provide to the GAC in circumstances where it disagrees with the advice. This process should also set forth the procedures by which the GAC and the Board will then “try in good faith and in a timely efficient manner to find a mutually acceptable solution.” This process must take into account the fact that the GAC meets face-to-face only three times a year and should consider establishing other mechanisms by which the Board and the GAC can satisfy the Bylaw provisions relating to GAC advice.
ATRT2 Recommendation 6.5
The Board should propose and vote on appropriate bylaw changes to formally implement the documented process for Board-GAC bylaws consultation as developed by the BGRI working group as soon as practicable (see ATRT1 Recommendation 11).
2. Notwithstanding the aforementioned positive sign of the Board’s commitment with the ICANN community, the ALAC is concerned that the proposed bylaws changes regarding consideration of GAC advice by the Board may pose a threat to equal footing between the different groups that conform the ICANN community and derive in an unbalanced weight to the GAC’s advice compared to that of the other ACs or the policies proposed by each of the SOs.
3. Moreover, the ALAC observes a trend in the Internet Governance ecosystem that tends to push towards giving increased power to governments. This would not only go against the multi-stakeholder model but wouldn’t comply with what the NTIA has stated as principles for the transition of the stewardship of the IANA functions. The proposed bylaws changes regarding consideration of GAC advice would add to this trend that we consider undesirable.
4. Considering that the BGRI has already designed a “Process for consultations between the ICANN Board of Directors (“Board”) and the Governmental Advisory Committee (“GAC”), including those required pursuant to Article XI, Section 2.1.j, of the ICANN Bylaws” and said process establishes a transparent, efficient and expedite method to either clarify the GAC advice to the Board; oblige the Board to provide reasonable detail on why it would take action not consistent with GAC advice; reverse the intended Board action or take mitigating action, the ALAC calls the Board to reconsider the proposed bylaws changes regarding consideration of GAC advice and continue to foster equal footing among all participants of the ICANN community.
5. In this sense, the ALAC recommends that the bylaws changes include a mechanism which considers the following:
a. If after concluding the process stated by both the bylaws and the BGRI, the Board determines to take action that is inconsistent with the Governmental Advisory Committee advice, then a Public Comment Period on such determination should be open;
b. After the end of the Public Comment Period, if there is consensus that the determination of the Board is supported by the community, then the Board will be able to take full action;
c. If after the end of the Public Comment Period there is no consensus that the determination of the Board is supported by the community, then the Board must reconsider its actions and its final decision must be supported by a two-thirds vote of all members of the Board that are eligible to vote on the matter.
The ALAC is confident that the Board will continue to implement the recommendations of the ATRT1 and ATRT2 in a way that safeguards the principles of the multi-stakeholder model, more specifically that of equal footing among participants.
FIRST DRAFT SUBMITTED
(Draft) ALAC statement on the Proposed Bylaws Changes Regarding Consideration of GAC Advice
The At-Large Advisory Committee (ALAC) welcomes the opportunity to comment on the proposed Bylaws changes regarding consideration of Governmental Advisory Committee (GAC) advice, and hereby submits the following as a formal statement to the Board:
- The ALAC salutes the Board’s continued effort on the implementation of the ATRT1 and ATRT2 recommendations, specifically recommendation 11 of the ATRT1 and 6.5 of the ATRT2, which read as follows:
ATRT1 Recommendation 11
The Board and the GAC should work together to have the GAC advice provided and considered on a more timely basis. The Board, acting through the GAC-Board joint working group, should establish by March 2011 a formal, documented process by which the Board responds to GAC advice. This process should set forth how and when the Board will inform the GAC, on a timely basis, whether it agrees or disagrees with the advice and will specify what details the Board will provide to the GAC in circumstances where it disagrees with the advice. This process should also set forth the procedures by which the GAC and the Board will then “try in good faith and in a timely efficient manner to find a mutually acceptable solution.” This process must take into account the fact that the GAC meets face-to-face only three times a year and should consider establishing other mechanisms by which the Board and the GAC can satisfy the Bylaw provisions relating to GAC advice.
ATRT2 Recommendation 6.5
The Board should propose and vote on appropriate bylaw changes to formally implement the documented process for Board-GAC bylaws consultation as developed by the BGRI working group as soon as practicable (see ATRT1 Recommendation 11).
- Notwithstanding the aforementioned positive sign of the Board’s commitment to the ICANN community, the ALAC is concerned that the proposed bylaws changes regarding consideration of GAC advice by the Board may pose a threat to equal footing between the different groups that conform the ICANN community and derive in an unbalanced weight to the GAC’s advice compared to that of the other ACs or the policies proposed by each of the SOs.
- Moreover, the ALAC finds a trend in the Internet Governance ecosystem that tends to push towards giving increased power to governments. This would not only go against the multi-stakeholder model but wouldn’t comply with what the NTIA has stated as principles for the transition of the stewardship of the IANA functions. The proposed bylaws changes regarding consideration of GAC advice would add to this trend that we consider undesirable.
- Considering that the BGRI has already designed a “Process for consultations between the ICANN Board of Directors (“Board”) and the Governmental Advisory Committee (“GAC”), including those required pursuant to Article XI, Section 2.1.j, of the ICANN Bylaws” and said process establishes a transparent, efficient and expedite method to either clarify the GAC advice to the Board; oblige the Board to provide reasonable detail on why it would take action not consistent with GAC advice; reverse the intended Board action or take mitigating action, the ALAC calls the Board to withdraw the proposed bylaws changes regarding consideration of GAC advice and continue to foster equal footing among all participants of the ICANN community.
The ALAC is confident that the Board will continue to implement the recommendations of the ATRT1 and ATRT2 in a way that safeguards the principles of the multi-stakeholder model, more specifically that of equal footing among participants.
4 Comments
Ariel Liang
This comment is posted on behalf of Carlton Samuels:
As we consider this change, I would urge that we look at this in conjunction with the Board Working Group on Nominating Committee Report (BGC-NomCoM) that deals with a reformulation of the NomCom. See it here: https://www.icann.org/en/system/files/files/bwg-nomcom-21aug14-en.pdf
In agreeing generally to expand the size of the NomCom, the BGC-NomCom has, among other developments, proposed aligning voting rights to SO/ASO and expanding regional diversity thru added voting rights for the ASO and ccNSO, the Board is proposing as well as increase the voting membership.
In context, I think three (3) matters are compelling; 1) the GAC is to have at least (3) voting representatives to NomCom 2) NomCom voting to be organised by delegation or factions 3) Appointments affirmed only with support of at least three (3) delegations or factions.
We are at the place where all ACs are not equal. At the moment, GAC advice is the only one for which the Board has a bye-law mandated duty to respond. All others can throw as much as they want over the fence. But there is no duty on the Board to respond, nay, even acknowledge receipt of advice. Much less, if it is even considered.
The strategic imperative is not to disqualify but to contain; by making that privilege harder to exercise in transparent practice.
On the balance of all these developments, maybe it is appropriate that a higher bar be in place for the Board to heed GAC advice. Conversely, maybe it would also be useful for a higher bar to compel explanation for not heeding GAC advice.
Alan Greenberg
I have a problem with the statement as written.
Without disputing the comments about government involvement in Internet governance, we need to look at this from an ICANN perspective as well. Even without the NTIA transition, there are parts of the Internet ecosystem, and in particular, some governments, the question ICANN's ability and right to oversee Internet names and numbers, The NTIA transition increases the scrutiny on ICANN and whether it can meet the expectations of the world, including those governments that are critical of ICANN.
The GAC is part of the rationale for justifying ICANN, and the ability of the GAC to advise is an integral part of the ICANN Bylaws. If not granting this change hurts ICANN's ability to make the case that governments do have a reasonably say in ICANN outcomes, that could ultimately take ICANN out of the equation. In reality, I do not think that this change will have any real impact. To date, decisions to follow or not follow GAC advice have been nearly (or completely) unanimous. But if granting this change makes it easier for those defending the ICANN model and in fact ICANN's existence, then we need to understand that in making any recommendation. In short, protecting ICANN from government control will have little benefit if ICANN ceases to exist.
I would appreciate thoughts on how these two competing needs can be balanced.
Olivier Crepin-Leblond
Alan raises a very valid point: many governments out there do not believe that ICANN has any legitimacy. Their participation through the GAC helps with having their representatives being able to relate to their government back home about ICANN's processes. On concern I have heard from individual GAC members, precisely those from countries that are more critical to ICANN, is that the concept of the GAC providing advice to ICANN cannot work due to such a low threshold in the Board being able to reject GAC advice. In essence, they believe that with such low threshold, participation through the GAC is pointless and their government could be better off addressing issues outside the GAC / ICANN sphere and at a place where their advice is treated more seriously, like the ITU.
So what's better? Raising the bar within ICANN to reassure those GAC members that their advice is taken very seriously indeed and needs a real full rejection by the Board members, for it to be rejected, or having those country ministries outside the GAC go to other fora to complain about ICANN?
That said, for the time being I do not know how to amend the First Draft to reflect this.
Carlton Samuels
IMHO, I think the current statement achieved raising the bar. Let 'em navigate!
-Carlton