Re: [council] AMENDMENT - Acceptance of the Report from the Bylaws Drafting Team

[Amr Elsadr <aelsadr@xxxxxxxxxxx>]

Hi,

Apologies for missing any discussions that I missed on this in Hyderabad, but 
wanted to offer my thoughts, as well as some questions before discussing this 
motion with the NCSG. Generally, I think this motion could be drafted far 
better. As is, I don’t plan on recommending that the NCSG vote against the 
motion, but I may recommend that at least one of our councillors attach a 
statement to the vote on this motion. Let me explain some of my specific 
concerns:

1) Whereas 3:

> During the course of the DT’s work, strongly divergent views were expressed 
> on the role of the GNSO Council in the Empowered Community, leading to the 
> production of a Final Report which included a minority report; and


The use of divergent in this context, although accurate, could be misleading. 
It is true that there was disagreement on a key recommendation coming out of 
the DT, but “divergent” is somewhat of a technical term in the GNSO. This is 
because it is used to describe one of the WG consensus levels in the GNSO WG 
Guidelines 
(https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-01sep16-en.pdf), 
and is described as "Divergence (also referred to as No Consensus) - a position 
where there isn't strong support for any particular position, but many 
different points of view. Sometimes this is due to irreconcilable differences 
of opinion and sometimes it is due to the fact that no one has a particularly 
strong or convincing viewpoint, but the members of the group agree that it is 
worth listing the issue in the report nonetheless”.

The first recommendation of the DT to assign the GNSO Council to act on behalf 
of the GNSO was given a “Strong support but significant opposition” designation 
as its consensus-level. As a member of the DT, I grudgingly supported this 
designation, as 3 of the 9 DT members were against this recommendation. That 
makes a third of the DT, and it seemed to me that this consensus level 
designation was a fair one. My reservation (which I did not voice) was that 
there was actually only one GNSO stakeholder group that opposed this 
recommendation, while the 3 others + NCA supported it. I’m not saying we need 
to revisit this now. However, there was no “divergence” in its technical sense 
on the DT. There was disagreement, which led to the “strong support but 
significant opposition”, although it could have arguably been designated as 
“Consensus” (not to be confused with “Full consensus”).

2) Resolved 1:

Is there a reason why the GNSO Council is “accepting” the recommendations of 
the DT instead of “approving” it? This language was changed from the original 
motion, and I was curious what the significance is. In the past, I believe the 
GNSO Council has adopted WG final reports and recommendations. Since this is 
new to me, I would like to know if there is something I am missing.

3) Resolved 2:

> The GNSO Council directs ICANN Policy Staff to draft proposed language for 
> any necessary modifications or additions to the GNSO Operating Procedures 
> and, if applicable, those parts of the ICANN Bylaws pertaining to the GNSO. 
> The GNSO Council requests that ICANN Legal evaluate whether the proposed 
> modifications are consistent with the post-transition Bylaws and report their 
> findings to the GNSO Council.


My understanding is that ICANN Legal needs to evaluate any proposed 
modifications to the ICANN bylaws, however, I understand that the Council will 
also be asking them to evaluate some changes to the GNSO Operating Procedures 
that do not require bylaws amendments. Substantively, I have no objection to 
this, as I have said in the past. However, since this legal review was not one 
of the DT recommendations, I would have preferred to separate this issue from 
the motion relevant to the bylaws-DT. Anyway…, no biggie.

4) Resolved 4:

> In acknowledgement of the divergent views within the DT, the GNSO Council 
> directs ICANN Policy Staff to post the DT Final Report, including the 
> minority report, and all proposed modifications or new procedures for public 
> comment for no less than 40 days. The GNSO Council expects that any comments 
> received will be given meaningful consideration.


I find this resolved clause to be very strange. First…, again there is the use 
of the word “divergent”, which I believe should be replaced with something like 
“disagreement” or “lack of full consensus”. More importantly, the resolved 
clause attributes the Council’s decision to submit the new operating procedures 
to public comment to this divergence!! As is the case in the DT’s final report, 
it seems to me that this clause only serves to unnecessarily draw as much 
attention to the minority position beyond what is reasonable. The minority 
report attached to the DT’s final report is already mentioned in whereas clause 
3, and holding public comment periods have been a long-standing practice when 
modifications to the GNSO Operating Procedures are being suggested, even when 
the WGs/Committees chartered by the Council make these suggestions with full 
consensus. Why is the public comment period here being attributed to the lack 
of consensus on the DT?

It seems to me that there is a will to (to the extent possible) undermine the 
recommendations of the DT. This is not only evident in the motion, but even in 
the DT final report itself, where there is a great deal more emphasis on the 
minority position than is necessary. I’m curious on wether or not the 
motioner/seconder are open to more amendments to this motion. If so, I’d be 
happy to suggest some.

Thanks.

Amr

> On Nov 7, 2016, at 9:14 AM, Rubens Kuhl <rubensk@xxxxxx> wrote:
> 
> James,
> 
> I do take those changes as friendly. 
> 
> Rubens
> 
> 
>> On Nov 7, 2016, at 10:53 AM, James M. Bladel <jbladel@xxxxxxxxxxx> wrote:
>> 
>> Councilors –
>>  
>> Attached and copied below, please find a proposed amendment to my earlier 
>> motion referenced above, in accordance with our discussions during last 
>> night’s working session. 
>>  
>> As a seconder, I would ask Rubens Kuhl to confirm whether he takes these 
>> changes as friendly.
>> Thank you,
>> J
>>  
>>  
>> 1.         MOTION – Acceptance of the Report from the GNSO Bylaws 
>> Implementation Drafting Team and next steps
>> (Motion deferred to 7 November 2016 from 13 October 2016)
>> Made by: James Bladel
>> Seconded by: Rubens Kuhl
>>  
>> WHEREAS:
>> 1.       On 30 June 2016 the GNSO Council approved the creation of a 
>> Drafting Team (DT) that was to work with ICANN staff to “fully identify all 
>> the new or additional rights and responsibilities that the GNSO has under 
>> the revised Bylaws, including but not limited to participation of the GNSO 
>> within the Empowered Community, and to develop new or modified structures 
>> and procedures (as necessary) to fully implement these new or additional 
>> rights and responsibilities”;
>> 2.       In creating the DT, the GNSO Council requested that the DT provide 
>> the GNSO Council with an implementation plan “which will have the consensus 
>> of the Drafting Team, including any recommendations for needed further 
>> changes to ICANN Bylaws and/or GNSO Operating Procedures to enable effective 
>> GNSO participation in ICANN activities under the revised ICANN Bylaws, not 
>> later than 30 September 2016”;
>> 3.       During the course of the DT’s work, strongly divergent views were 
>> expressed on the role of the GNSO Council in the Empowered Community, 
>> leading to the production of a Final Report which included a minority 
>> report; and 
>> 4.       The DT submitted its Final Report to the GNSO Council on 12 October 
>> 2016 
>> (https://gnso.icann.org/en/drafts/bylaws-drafting-team-final-report-12oct16-en.pdf).
>>  The GNSO Council has reviewed the DT’s report.
>>  
>> RESOLVED:
>>  
>> 1.       The GNSO Council accepts the recommendations in the DT’s report as 
>> submitted.
>> 2.       The GNSO Council directs ICANN Policy Staff to draft proposed 
>> language for any necessary modifications or additions to the GNSO Operating 
>> Procedures and, if applicable, those parts of the ICANN Bylaws pertaining to 
>> the GNSO. The GNSO Council requests that ICANN Legal evaluate whether the 
>> proposed modifications are consistent with the post-transition Bylaws and 
>> report their findings to the GNSO Council.
>> 3.       The GNSO Council requests that members of the DT make themselves 
>> available for consultation by ICANN Policy Staff as needed.
>> 4.       In acknowledgement of the divergent views within the DT, the GNSO 
>> Council directs ICANN Policy Staff to post the DT Final Report, including 
>> the minority report, and all proposed modifications or new procedures for 
>> public comment for no less than 40 days. The GNSO Council expects that any 
>> comments received will be given meaningful consideration.
>> 5.       As resolved previously, the GNSO Council intends to subject the 
>> adoption of the proposed modifications to existing procedures and/or ICANN 
>> Bylaws to a GNSO Supermajority vote.
>> 6.       The GNSO Council thanks the DT for its collaborative effort, 
>> especially in view the limited time frame available to the DT.
>>  
>> <Bylaws DT Updated Motion - 7 November 2016[1].docx>
>