[Chapter-delegates] ChAC-SC Advice notice
Greg Shatan
greg at isoc-ny.org
Sun Mar 1 23:03:43 PST 2020
Apologies in advance for length, but I wanted to get some of the facts out
in response to the weighty allegation of the suppression of dissent.
In considering the issue of the ChAC's procedures and the alleged
"suppression" of "dissent," I first suggest reading Eduardo Diaz's
comprehensive email earlier Sunday. Second, I suggest looking at Section 6
of the ChAC's Rules and Procedures, which covers ChAC decisionmaking. It
is not long, and I think it is pretty clear:
Substantive decisions, in particular regarding advice and recommendations,
shall be made by the AC. Decisions may be made by electronic means (e.g.
E-Mail, electronic voting systems, etc.) or during remote (audio/video
conferencing) or physical meetings. Decisions shall normally be taken by
consensus (meaning lack of formal opposition). If consensus cannot be
achieved, then the Chair of the AC Steering Committee shall organize a
vote. In case of voting, decisions shall be taken by a majority vote of the
delegates to the AC. The quorum shall be nineteen (19) delegates. In case
of tie, the matter will be resubmitted for discussion and a new vote. Votes
will be secret. The tally of votes (for, against, abstain, did not vote)
will be published. Abstentions will be counted towards determining the
quorum.
That's the whole thing. There are two key points for the current
discussion:
- *Decisions shall normally be taken by consensus (meaning lack of
formal opposition)*.
- This states that the normal process used for decisions is
"consensus."
- This defines "consensus" as the "lack of formal opposition."
- If there is "formal opposition," then consensus has not been
achieved, and the question must go to a vote.
- *If consensus cannot be achieved, then the Chair of the AC Steering
Committee shall organize a vote*.
- Voting decision is made by a majority of those voting, as long as
there is a quorum.
- A quorum is 19 delegates.
Without going through the whole timeline, the issue had been discussed on
the ChAC list prior to the December 17 meeting and occupied a good portion
of that meeting.
- A 9-person drafting team was formed directly after the Dec 17 meeting
and worked on the advice for several weeks and several drafts.
- The draft advice was the sent to the entire ChAC for discussion and
comments from Jan 30 to Feb 7. There were many comments and discussions
during this time.
- The Drafting Team took these into account in preparing a further
revision of the Advice, which was submitted to the Steering Committee.
- On Feb 16, the SC issued a consensus call ending at 16:00 UTC on Feb
23. The email stated "Please let us know if you object to any individual
advice or all of the advice and provide the reasoning for the objection.
"
- On Feb 20, Eduardo sent a reminder on 20 Feb.
- From Feb 16, various statements of support or non-objection were
received.
- On 21 Feb, Franca Palazzo wrote, "I am the Chapter Leader for Internet
Society Canada Chapter and would like ask for an extension on the consensus
call. Given today's press release, I believe further discussion is
reasonable and required."
- Richard Hill responded about 35 minutes later, with an email stating "I
respectfully disagree regarding delaying the consensus call. To begin with,
I don't think that the advice on Consultation and Bylaw Changes is affected
by the press release. Regarding the advice on PIR Sale, as far as I can
tell, the proposed ICANN PIC would only implement the part of the ChAC
advice that relates to binding commitments, namely point 1. It does not
relate to the other points, which are about openness and transparency. I
don't know whether Ethos developed the proposed PICs through some sort of
consultation, but I haven't heard of any consultation. Proposing PICs that
have not been consulted is not exactly in line with ChAC advice point 1.
Figuring out whether we need to redraft the advice in light of the recent
announcement will take time. We can consider that matter after the
consensus call. In fact, it would be easier to redraft and submit a new
version to the Board after the consensus call, than to stop everything now
in order to redraft. Recall that the Board always has the option to send
the advice back to ChAC, with comments, asking ChAC to reconsider and
revert with modified advice. So I submit that the consensus call should
not be delayed."
- Eduardo responded just after Richard, asking "Franca: Can you be more
explicit? How long of a delay? Is the delay for all advice or just the one
concerned with the PIR sale? This information will help the ChAC-SC decide
on this. Thanks." [There is no response from Franca on the list.]
- About an hour after that, I responded, agreeing with Richard. Several
hours later there were two other agreements.
- After that, there were several more emails with support or
non-objection, but no further mention of a delay.
- On Feb 23 at 15:18 UTC, the Yemen Chapter requested a delay, which was
acknowledged by Eduardo. [Note: all time are based on my email inbox, as
MemberNova inexplicably and frustratingly does not display the dates and
times of emails on its lists, only the number of "days ago" an email was
sent.]
- On Feb 23 at 17:45 UTC, Eduardo wrote that the Canada, DC and Yemen
Chapters had requested a delay to allow additional time to discuss the
Ethos Capital press release, but that the consensus call would not be
extended past the original deadline, which had passed at 16:00 UTC.
Eduardo thanked everyone for participating in this bottom-up consultative
process. [I did not see an email from the DC Chapter so this must have been
communicated to the SC off-list.]
- Some time later on Feb 23, Trinidad & Tobago wrote that the chapter
does not support the recommendations.
- Eduardo responded: "Niran: The ISOC Trinidad and Tobago Chapter
objection was submitted after the 16:00 UTC deadline. Unfortunately, we can
not accept it as part of the consensus call. I presume that additional
discussions/announcements will follow the Advice just sent. The ChAC-SC
will make sure to continue consulting with the full ChAC as this happens
going forward."
- The DC Chapter then wrote "Unfortunately I did not have access earlier
today. For what it is worth the DC Chapter requests that there be a vote."
- Eduardo responded: "John: There were no objections received by the set
deadline so there was no need to turn the consensus call into a vote. Thank
you for your note."
- Two other emails with support or non-objection were also received
after the deadline.
Mike Godwin states "I take Juan’s objections here—as I take Franca’s and
Solomon’s—quite seriously." The primary point stated by each of them was
that "silence is not consent." However, this is not a challenge to the
determination of consensus in this (or any other) case, since consensus (as
stated in the rules) is defined by the lack of formal opposition. While
silence may not be consent, silence is clearly a lack of formal
opposition. Therefore, the consensus determination was correct.
(I will note that while Franca did respond to the consensus call, Juan and
Solomon did not (and Solomon does not appear on the list of ChAC members,
as Zimbabwe has no listed representative).) It also appeared that Juan and
Solomon felt that their chapters did not have the time or resources to
participate in the discussion. (This, of course, raises wider issues for
ISOC with regard to engagement and capacity-building far beyond this
thread.)
While Franca did state, on Feb 27, that the Canadian Chapter did not
necessarily agree with this submission in its entirety, neither Juan nor
Solomon objected to the substance of the submission. As only Canada and
Trinidad & Tobago stated objections, and neither did so during the
consensus call, I cannot see evidence of "strong dissent—which may of
course represent less than a majority of interests—regarding ChAC’s
recommendations." This seems to be a serious overstatement of the
situation.
I do not see in this narrative any attempt to stifle dissent, or even
anything that would support an impression of such an attempt. I see in the
consensus call thread a couple of extension requests and a single, untimely
objection. I don't think it was a fair statement that Franca was "pounced
on" when two polite emails were sent in disagreement.
Yes, there were some judgment calls made by the SC, which decided to follow
its process and the sentiment of the vast majority of the respondents,
including those who opposed the requests for delay (which had extremely
limited support). But I can't see this as stifling dissent -- which
implies an abuse of power. I think consensus was applied in a reasonable
manner, and it should be kept in mind that this call followed earlier
periods when objections could have been raised. The consensus call invited
objections, and the rules note the need for formal opposition. This was not
forthcoming, so there is no basis to establish either strong dissent or the
stifling thereof.
Given the above and many other email responses, I think that the burden of
proof is (as it should have been) on those who claim that dissent was being
suppressed, procedurally or in some other way.
In putting this together, I am again struck by the fact that this advice,
while fairly strong medicine, was seen as part of a dialogue with the BoT.
I encourage us all to go back to the substance of the matters at hand and
not to spend much more time on this post mortem. While it is important to
consider such concerns as were raised, at some point we are in the weeds,
down a rabbit hole and beating a dead horse. Meanwhile, there are bigger
fish to fry, and the house is on fire (or maybe it's just the fried fish,
but either way, that is where our attention needs to go).
Best regards,
Greg
--------------------------------------------------------------------
*Greg Shatan | President, ISOC-NY*
greg at isoc-ny.org
*"The Internet is for everyone"*
On Sun, Mar 1, 2020 at 8:22 PM Greg Shatan <greg at isoc-ny.org> wrote:
> Mike,
>
> This is a situation where tensions run high and a lot is on the line.
> There has been a general tendency to group people into "camps" -- as "for"
> or "against" the transaction. That loses a lot of nuance, to say the
> least. I think you are mistaken to assume that "many members of this list
> oppose the sale." Even if this were true, it would be a mistake to build
> on this Chapters Delegates list and assume that many members of the *Chapters
> Advisory Council *oppose the sale. To be clear, this is not the ChAC
> email list -- there are many people on this list who are not on the ChAC,
> and reading this list is not a substitute for understanding what transpired
> on the ChAC.
>
> These mistaken assumptions seems to be the springboard for your mistaken
> perception that efforts were made to suppress dissent, and that multiple
> members of the ChAC "participated" in this "suppression." I'm disappointed
> to see you make such a strong accusation. The last thing we need here is a
> spitting match between members of the Board and members of the ChAC.
>
> I would say that the prevailing sense on the ChAC list -- and behind the
> ChAC Advice -- is one of deep *concern* about elements of the transaction
> and lack of information, concern about the buyer and their plans, and
> concern *for* ISOC. Underlying that is a desire for substantive
> dialogue -- about the transaction, about PIR post-transaction, about the
> way in which ISOC handled the transaction, and where ISOC goes from here.
> The idea was to stop long enough for the BoT to consider the concerns that
> the ChAC had been working since December to put it into Advice.
>
> The word "scrupulous" was being used to mean that ChAC leadership was
> adhering to procedural norms, was not being sloppy or off-hand in its
> application of the rules, that it was not playing games unscrupulously to
> manufacture a result. That is why it was so distressing to see you
> (cleverly) seize on the word "scrupulous," elide it with "meticulous" and
> twist this into an accusation the ChAC of manipulating the rules to smother
> dissent or participation (which would hardly show "scruples."). As you
> noted three days ago, "adherence to procedural norms minimizes the risks
> of misinformation and misperception." I believe that states the goal of
> ChAC leadership.
>
> Proving "impressions" wrong can sometimes be difficult, since impressions
> are not necessarily evidence-based -- but in this case, it shouldn't be too
> difficult. I will give it a shot in a follow-up email. I hope you will
> see that your impressions are wrong.
>
> Finally, my experience with consensus may be less broad than yours, but in
> the ICANN context, the consensus process of decision-making is not used
> "primarily with regard to issues around which there is little or no
> controversy." Rather, consensus is used for virtually *every* policy
> development decision. There is no sense in the ChAC charter or rules that
> consensus is limited in the fashion you suggest. Rather, it is the primary
> decision making tool. Interestingly, the ChAC rules offer a "way out" that
> ICANN's consensus methods do not -- a single statement of *opposition*
> forces a vote, with the decision made by a majority vote, with the quorum
> being 19 delegates. No such statement was received during the one-week
> long consensus call.
>
> Best regards,
>
> Greg
>
>
> --------------------------------------------------------------------
> *Greg Shatan | President, ISOC-NY*
> greg at isoc-ny.org
>
>
> *"The Internet is for everyone"*
>
>
>
> On Sun, Mar 1, 2020 at 7:13 PM Mike Godwin via Chapter-delegates <
> chapter-delegates at elists.isoc.org> wrote:
>
>> First of all, let me apologize for seeming to be clever, or seeming to
>> attempt cleverness.
>>
>> I take very seriously the fact that many members of this list oppose the
>> sale, and I entirely support their right to oppose it.
>>
>> My concern about what seems to me to be efforts to suppress dissent is
>> genuine, but that means that nothing would please me more than to learn
>> that my impressions are incorrect.
>>
>> I would prefer to believe that no dissent is being suppressed,
>> procedurally or any other way. I am happy if I can be proved wrong with
>> regard to any of the impressions I have expressed prior to now.
>>
>> Please accept both my sincere apology and my reaffirmation of my sincere
>> concerns.
>>
>> Mike
>>
>>
>> On Sun, Mar 1, 2020 at 7:02 PM John More <morej1 at mac.com> wrote:
>>
>>> Your aspersions are completely out of bounds. Your cleverness about due
>>> process is only cleverness.
>>>
>>> I happen to be a supporter of the sale, since I believe the Trustees had
>>> a duty to diversify the assets of ISOC by getting out of the .org business.
>>> That is not to say, I think the process could not have been different and
>>> the the sort of protections now being implemented were not needed.
>>>
>>> I would have welcomed incorporating reflecting whatever dissent you
>>> wanted to make, especially if it were supporting the sale.
>>>
>>> John More
>>>
>>> On Mar 1, 2020, at 5:29 PM, Mike Godwin <mnemonic at gmail.com> wrote:
>>>
>>> Richard writes:
>>>
>>> 'With due respect, the ChAC process was scrupulously followed, as
>>> Eduardo has explained. You apparently think that that process is not
>>> appropriate. You are of course entitled to you views, but it is the process
>>> that was approved by the Board.'
>>>
>>> The notion that scrupulous adherence to due process is a defense is a
>>> common argument in Hell. See, e.g., this statement by Grant Gilmore:
>>>
>>>
>>> https://www.goodreads.com/work/quotes/342530-the-ages-of-american-law-the-storrs-lectures-series
>>>
>>> In relevant sentence: "In hell there will be nothing but law, and due
>>> process will be meticulously observed.”
>>>
>>> Your argument that that due process was "scrupulously" followed is no
>>> comfort to the dissenters whom you participated in suppressing.
>>>
>>> Mike
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Sun, Mar 1, 2020 at 5:07 PM John More via Chapter-delegates <
>>> chapter-delegates at elists.isoc.org> wrote:
>>>
>>>> Juan
>>>>
>>>> I fully recognize how busy most of us are. There is a difference
>>>> between the elists which are often loaded with repetitious comments and can
>>>> be a waste of time. The ChapterAC process for the advice was clear and
>>>> scrupulously followed. Moreover, it involved relatively minimal time
>>>> demands except for those of us on the drafting committee. All that was
>>>> required was to review the draft and send in an email opposition. If there
>>>> had been opposition expressed, a vote would have been required.
>>>>
>>>> So I agree that silence is not assent, but it is a “consent" that the
>>>> proposal go forward without a formal vote, especially since withholding
>>>> consent was fairly easy to do.
>>>>
>>>> I do hope you will be able to be involved if the ChaptersAC has another
>>>> issue like this one.
>>>>
>>>> Yours,
>>>>
>>>> John More
>>>> ISOC-DC
>>>>
>>>> > On Mar 1, 2020, at 4:04 PM, Juan C. Cigala, Internet Society Canarias
>>>> via Chapter-delegates <chapter-delegates at elists.isoc.org> wrote:
>>>> >
>>>> > I agree with Franca and Solomon, silence is not consent.
>>>> >
>>>> > Many of us haven't the time to take care of this kind of never ending
>>>> kind of discussions.
>>>> >
>>>> > I support the debate, but with the due respect for the time of the
>>>> others.
>>>> >
>>>> >
>>>> > On 2/27/2020 04:49, Solomon Hopewell Kembo via Chapter-delegates
>>>> wrote:
>>>> >> I agree with Franca, silence is not consent.
>>>> >
>>>> > _______________________________________________
>>>> > As an Internet Society Chapter Officer you are automatically
>>>> subscribed
>>>> > to this list, which is regularly synchronized with the Internet
>>>> Society Chapter Portal (AMS):
>>>> > https://admin.internetsociety.org/622619/User/Login
>>>> > View the Internet Society Code of Conduct:
>>>> https://www.internetsociety.org/become-a-member/code-of-conduct/
>>>>
>>>> _______________________________________________
>>>> As an Internet Society Chapter Officer you are automatically subscribed
>>>> to this list, which is regularly synchronized with the Internet Society
>>>> Chapter Portal (AMS):
>>>> https://admin.internetsociety.org/622619/User/Login
>>>> View the Internet Society Code of Conduct:
>>>> https://www.internetsociety.org/become-a-member/code-of-conduct/
>>>>
>>>
>>> _______________________________________________
>> As an Internet Society Chapter Officer you are automatically subscribed
>> to this list, which is regularly synchronized with the Internet Society
>> Chapter Portal (AMS):
>> https://admin.internetsociety.org/622619/User/Login
>> View the Internet Society Code of Conduct:
>> https://www.internetsociety.org/become-a-member/code-of-conduct/
>>
>
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