RE: [council] Final GAC communique

["Winterfeldt, Brian J." <brian.winterfeldt@xxxxxxxxxxxxx>]

Dear Jonathan:

I meant to add earlier that I concur with your assessment on status completely. 
 And, if others are in agreement, I think it may be useful to highlight not 
only that "the GAC's input should be focused primarily on the potential public 
policy implications of the work of the GNSO," but that we should also develop a 
way to identify very early on and apprise everyone as to whether a particular 
aspect of our policy work has potential public policy implications.

For example, take the potential public policy implications the PPSAI PDP WG may 
have; is there a clear way to encapsulate those for the GAC now that the WG is 
underway?

Thank you,

Brian

Brian J. Winterfeldt
Head of Internet Practice
Katten Muchin Rosenman LLP
2900 K Street NW, North Tower - Suite 200 / Washington, DC 20007-5118
p / (202) 625-3562 f / (202) 339-8244
brian.winterfeldt@xxxxxxxxxxxxx<mailto:brian.winterfeldt@xxxxxxxxxxxxx> / 
www.kattenlaw.com<http://www.kattenlaw.com/>

From: Winterfeldt, Brian J.
Sent: Thursday, November 28, 2013 6:19 PM
To: Amr Elsadr
Cc: Mike O'Connor; <jrobinson@xxxxxxxxxxxx<mailto:jrobinson@xxxxxxxxxxxx>>; 
Mary Wong; Council GNSO
Subject: Re: [council] Final GAC communique

I'm happy to participate as well.

Best,

Brian
Brian J. Winterfeldt
Head of Internet Practice
Katten Muchin Rosenman LLP
2900 K Street NW, North Tower<x-apple-data-detectors://0> - Suite 200 / 
Washington, DC 20007-5118<x-apple-data-detectors://1/0>
p / (202) 625-3562<tel:(202)%20625-3562> f / (202) 
339-8244<tel:(202)%20339-8244>
brian.winterfeldt@xxxxxxxxxxxxx<mailto:brian.winterfeldt@xxxxxxxxxxxxx> / 
www.kattenlaw.com<http://www.kattenlaw.com/>

On Nov 27, 2013, at 1:59 PM, "Amr Elsadr" 
<aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>> wrote:
Me too.

Thanks.

Amr

Sent from mobile

On Nov 27, 2013, at 5:56 PM, Mike O'Connor 
<mike@xxxxxxxxxx<mailto:mike@xxxxxxxxxx>> wrote:
i'm in.

mikey


On Nov 27, 2013, at 10:51 AM, "Jonathan Robinson" 
<jrobinson@xxxxxxxxxxxx<mailto:jrobinson@xxxxxxxxxxxx>> wrote:


Great to have this level of engagement on a topic!

A couple of points on status:

1. The issue arises formally from a recommendation of ATRT 1 i.e. that the
GAC should engage earlier with the GNSO PDP.
2. My interpretation is:
a) that it is intended that this engagement / input should be such that when
(and if) the GAC does provide Advice (to the Board), it is at least not
unexpected and, at best, consistent with GNSO policy / policy advice.
And
b) that the GAC's input (to the GNSO policy work) should be focussed
primarily on the potential (or actual) public policy implications of the
corresponding GNSO policy work.

Of course, the devil is in both the detail and the expectations of the
format of and response to the input of the GAC.  That is what the table that
Marika sent around attempts to start to flesh out.
And, therefore, the scope of the joint team to try to make progress on.

I received an update today from Manal which suggests that the GAC may
participate with as many as 6 participants.  In which case, it seems to me,
that we need a balanced number of participants.
Should that be the case, some of you on this thread may wish to volunteer to
participate.

To set expectations, I am anticipating that we'll have a mailing list and
regular calls (say 2 weekly), not dissimilar to a GNSO working group.


Jonathan

-----Original Message-----
From: Amr Elsadr [mailto:aelsadr@xxxxxxxxxxx]
Sent: 26 November 2013 17:53
To: Mary Wong
Cc: Council GNSO
Subject: Re: [council] Final GAC communique


Interesting. Thanks Mary.

Amr

On Nov 26, 2013, at 6:43 PM, Mary Wong 
<mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>> wrote:

For the benefit of some of the newer participants among us and the
GNSO community - note that even when GAC members participate in WGs,
they do not do so as representatives of the GAC, or even their own
countries, though they may of course be able to inform the WG of
either the GAC's position (if there is one) on the issue at hand. The
GAC has been very firm about this, and it may partly have to do with
how GAC consensus is achieved - as in other multi-lateral forums,
"consensus" is reached if there is no objection by a GAC member to a
particular position.
Conversely, if just one GAC member objects to a particular position,
there is therefore no consensus. This is of course different from how
GNSO PDPs and WGs work.

As Marika has mentioned, this discussion could be helpful to the small
group from the GNSO that will be discussing methods of early
engagement with/from the GAC, mindful of Thomas' distinction between
GAC Advice (as conceived in the ICANN Bylaws) and GAC input.

Cheers
Mary


Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>

* One World. One Internet. *




-----Original Message-----
From: Amr Elsadr <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>
Date: Tuesday, November 26, 2013 12:18 PM
To: Council GNSO <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: Re: [council] Final GAC communique


Hi all,

Thanks for the clarification Thomas. It makes a lot of sense to be
wary of what kind of early engagement we¹d like to encourage from the
GAC, and I don¹t find it surprising that there seems to be a general
sense of agreement here on how this should be done.

I, like others, feel it would be great to have more GAC
representatives become involved in PDP WGs, but cannot confidently
predict how this would affect the GAC reaction at-large. I am not
familiar with how the GAC collectively reaches a position on PDP
outcomes. I wouldn't be surprised to learn that these positions are
prepared by only a handful of their members. If anyone else has
insights on how this is done, I¹d appreciate it if you shared.

Like Chuck said, we do have two GAC reps on the policy and
implementation WG, but this is not a PDP WG. And unless I am mistaken
(and please correct me if I¹m wrong on this Chuck), their
participation both during calls and on-list is quite limited. I bring
this up because encouraging GAC members to join WGs is one thing, and
encouraging them to actively engage in the consensus development of
policy recommendations is another.
I hope we can encourage them to do both. I am curious to see how
interaction at this level (the WG level) might affect GAC Advice
(capital
A) and their collective perception of the necessity and manner of
early engagement.

Thanks.

Amr

On Nov 26, 2013, at 5:30 PM, Mike O'Connor 
<mike@xxxxxxxxxx<mailto:mike@xxxxxxxxxx>> wrote:

ah!

*very* helpful.  thanks Thomas for taking the time to craft that reply.
and thanks to John for picking up how i misunderstood the core of
Thomas' argument.

i agree with you that capital-A advice would indeed be complicated
for a WG to handle, given that the goal of WG discussion is to
arrive at positions that are usually different from the starting
points of each participant.

does Berry's contribution to this thread (describing USG comments
during a comment period) provide an avenue for slightly-less-firm
input from the GAC, or GAC members?  while WG's are not required to
incorporate comments into their final positions, they ARE required
to respond to each comment -- which might provide an avenue for dialog.
focusing on developing that approach might lead us to a good middle
ground between the WG's need for flexibility/negotiation and the
GAC's need for structure and due deliberation.

m


On Nov 26, 2013, at 10:14 AM, Thomas Rickert 
<rickert@xxxxxxxxxxx<mailto:rickert@xxxxxxxxxxx>>
wrote:

John, Mikey and Chuck,
to start with, I am not against early GAC input and you will
remember that I have encouraged that the GAC or individual GA
members get involved at the earliest possible date. Let me quote
from my earlier e-mail where I explicitly stated that:

The GAC should engage early so that PDP WGs get an indication as
to what the GAC or even individual GAC member's thinking is.
This is valuable and will help a lot.



What we should discuss, though, is whether GAC Advice (capital
letter
A) should be directed at PDP WGs during a PDP or at the G-Council.

Bear in mind, I spoke about GAC Advice and not about GAC input.

My hesitation with respect to GAC Advice during a PDP stems from
the following considerations:

- The term GAC Advice has legal implications. At the moment GAC
Advice is only directed at the Board and the Board can only
disregard GAC Advice under certain circumstances.

-  If GAC Advice were also directed at PDP WGs, would or should
that be a second opportunity for the GAC to give Advice (capital
A)? If so, what would be the consequences of that?

- Could the WG disregard GAC Advice? If so, what would give the WG
authority to do so? PDP WGs work on recommendations to be made to
the Council, but I do not see that it has the legal authority to
make binding decisions on behalf of the GNSO or even ICANN, while,
in fact, responding to GAC Advice in one way or the other would be
or would be seen as acting on behalf of ICANN.

- If the WG followed GAC Advice, would that bind the Board at a
later stage so the Board looses the right to disregard it?

- Either way PDP WGs are tasked to work and I am not sure we should
burden their work with issues that might have far-reaching
political implications for the whole community.

- Comparable issues would arise if GAC Advice would be directed at
the G-Council.

Again, I very much in favor of GAC early engagement and the
discussion that we have here should not dilute that. Even more, GAC
early engagement can help avoid friction between the GAC's
expectations and the communities work product at a later stage and
maybe avoid the necessity for GAC Advice to the Board.

What I am asking for is that we carefully consider the consequences
of GAC input if such input took the format of GAC Advice for the
reasons above.

Thanks,
Thomas


Am 26.11.2013 um 12:36 schrieb John Berard 
<john@xxxxxxxxxxxxxxxxxxx<mailto:john@xxxxxxxxxxxxxxxxxxx>>:


Thomas,

Can you confirm you were arguing against early GAC input?

Berard

Sent from my iPhone

On Nov 26, 2013, at 10:25 AM, "Mike O'Connor" 
<mike@xxxxxxxxxx<mailto:mike@xxxxxxxxxx>>
wrote:

hi all,

i lean in Chuck's direction with regard to WG participation.  i
don't have the history/knowledge to comment on the relationship
between Board/GAC/GNSO-Council...

as i've come to know the WG process over the years, i've found
that it works better when there are more inputs rather than
fewer.  that doesn't mean that it's easier, only that the results are
more robust.
i've always hoped for more participation by members of the GAC
and am keen to find ways that they could do that.

i also agree with Chuck that earlier participation is a great thing.
much like any project, the sooner we can get help figuring out
the gaps in our thinking, or the reasons why a given direction is
to be desired, the easier it is to get on the right track.  and
the less backtracking/repair/recovery we need to do later on.
often people don't really mind changing the direction a
conversation is going if it resolves a divergence -- but when the
journey is nearly done, WG members are weary and the road to the
new place is long, sometimes participants get frustrated and
resist the change just because it's hard to get from here to there.

these thoughts don't just apply to the GAC, but any point of view
that needs to be expressed in a WG.  more voices is good.
earlier is good.

like Chuck, i'm willing to be persuaded.   :-)

mikey


On Nov 26, 2013, at 8:12 AM, "Gomes, Chuck"
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>
wrote:


Thomas,

Please see my responses below.

Chuck

-----Original Message-----
From: Thomas Rickert [mailto:rickert@xxxxxxxxxxx]
Sent: Sunday, November 24, 2013 5:45 PM
To: Gomes, Chuck
Cc: Avri Doria; Council GNSO
Subject: Re: [council] Final GAC communique

Hi Avri and Chuck,
in my view, we should have a discussion on our expectations some
time soon.

Other than Avri, I do think that the GAC could engage early and
/ or acknowledge the role and work products of the GNSO and at
the same time only consider the Board as its equal.

[Chuck Gomes] I think the Bylaws should be changed so the GAC is
encouraged to provide input to WGs as early as possible like
they did with the IGO-INGO PDP WG, albeit via the Board.  I
personally think that the language in the Bylaws that says that
the GAC should be complemented with language that says they also
give advice to policy WGs that involve public policy issues.
The excuse that they are just advisors to the Board should be
removed.

During the GAC/GNSO session it was mentioned that the GAC still
needs to consider when to give advice during a GNSO policy
development process and I am not sure we really want GAC Advice
directed at the G-Council or even at the WG level.

[Chuck Gomes] Why not?

The GAC should engage early so that PDP WGs get an indication as
to what the GAC or even individual GAC member's thinking is.
This is valuable and will help a lot. I would not like to see
special rights for the GAC to be implemented. In that regard, it
does not harm if the GAC sees the Board as the group to direct
advice at.

[Chuck Gomes] As you can see by my earlier comments, I disagree
but am open to being convinced otherwise.

We should discuss this further - maybe in one of the upcoming
telcos.

[Chuck Gomes] I am open to discussion but remember that I am
only a temporary alternate on the Council and probably will not
be on any more Council calls.


Thanks,
Thomas

Am 22.11.2013 um 18:09 schrieb "Gomes, Chuck"
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>:


Note that we have two GAC participants in the Policy &
Implementation (P&I) WG.  We suggested in our letter to the GAC
that they might be able to serve in some sort of unofficial
liaison capacity if the GAC was okay with that, not
representing the GAC but being communication channels.

Chuck

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Avri Doria
Sent: Friday, November 22, 2013 12:13 PM
To: Council GNSO
Subject: Re: [council] Final GAC communique

Hi,

I do not think this should surprise us.  And I mean the
disrespect the GAC has for any structure lower than the Board.
For them to acknowledge our work would be for them to
acknowledge that we have a role on a par with theirs.  And
governments never admit to being equal to any one else - only
in the IGF have we seem some loosening of that in the general
Internet governance arena.  I expect that they really do not
consider the Board their equals, but they put up with the things
they need to put up with.

They had a liaison with the Council in the past, but
participation limited them and limited their ability to give
advise that took no account of the work done in the GNSO.
Early engagement is contradictory to reinforcing the power of
their advice - which is their ultimate goal.

I think we should continue to invite and encourage them to
participate.  Sooner or later one of them will take us
seriously again - we have had some WG participants from GAC in
the past, we may again some day.  But we should also not fool
ourselves into expecting them to take any supportive notice of our
efforts.

I have every respect for those of you doing the essential work
on improving coordination between GAC and the GNSO, as I expect
your main reward will be knowing you tried, as opposed to any
real GAC early engagement.  Hope I am wrong.

avri


On 21 Nov 2013, at 18:00, Thomas Rickert wrote:

Nonetheless it is sad and I will say that I find it
interesting to show respect to the GNSO's PDP work by working
on ways to engage and then completely ignore work that is done
in PDPs which is relevant to what they are deliberating.

Thomas


Am 21.11.2013 um 17:17 schrieb "Gomes, Chuck"
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>:


Remember that they never thought we should be considering this.
:(

Chuck

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Thomas
Rickert
Sent: Thursday, November 21, 2013 3:11 PM
To: Glen de Saint Géry
Cc: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: Re: [council] Final GAC communique


All,
sadly, the GAC communique includes Advise on IGO/INGOs, but
does not mention the GNSO's PDP WG or the motion that passed.

Thomas

=============
thomas-rickert.tel
+49.228.74.898.0

Am 21.11.2013 um 16:57 schrieb Glen de Saint Géry
<Glen@xxxxxxxxx<mailto:Glen@xxxxxxxxx>>:

FYI

Attached please find the finalised GAC communique from
Buenos Aires.

The communique will be posted on the GAC Website later today.

Glen de Saint Géry
GNSO Secretariat
gnso.secretariat@xxxxxxxxxxxxxx<mailto:gnso.secretariat@xxxxxxxxxxxxxx> 
http://gnso.icann.org



<FINAL_Buenos_Aires_GAC_Communique_20131120.pdf>


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