[Chapter-delegates] ChAC-SC Advice notice

Mon Mar 2 01:10:38 PST 2020

Dear Greg,

Thank you very much for having taken the time to post this accurate, thorough, and meticulous account of events, and also for your analysis and recommendations, which I fully endorse. In particular, your conclusion, which I would paraphrase as “let’s focus on the substance.”

Best,

Richard

From: Chapter-delegates [mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of Greg Shatan via Chapter-delegates
Sent: Monday, March 2, 2020 08:04
To: mnemonic at gmail.com
Cc: ISOC Chapter Delegates
Subject: Re: [Chapter-delegates] ChAC-SC Advice notice

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 

  <https://docs.google.com/uc?export=download&id=1CfISkzienX58uUrkiR1MiyDOolyKT7-3&revid=0B34elQ4FY0yVeU96SCtabVdHcXF2NW1LT0FtOUNaa203WmJnPQ> 

"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 

  <https://docs.google.com/uc?export=download&id=1CfISkzienX58uUrkiR1MiyDOolyKT7-3&revid=0B34elQ4FY0yVeU96SCtabVdHcXF2NW1LT0FtOUNaa203WmJnPQ> 

"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.
> 
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