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

["James M. Bladel" <jbladel@xxxxxxxxxxx>]

Hi Amr –

Thanks for your comments, and you have indeed picked up on some of the items 
that were the subject of extensive discussions in Hyderabad.  I’ll try to 
address them individually below.

(1) Regarding the use of “divergent” – We were trying to capture the spectrum 
of views without undermining the majority position.  Perhaps in doing so we 
have mis-appropriated some of the terms that are typically reserved for PDP 
working groups.  If “divergent” is causing trouble, perhaps an equivalent (but 
less loaded) term can be used, such as “diverse views” or “contrary” or 
“dissimilar”.
(2) This was also discussed in India, and the wording was changed to avoid 
confusion, as the GNSO does not “adopt” or “approve” changes to the bylaws 
resulting from the Final Report, but instead submits these to the Board for 
approval.  But in practical terms, there doesn’t seem to be any material 
difference in the next steps whether the Council “approves” or “adopts” or 
“accepts” the recommendations
(3) The review by ICANN legal was going to happen in any case (and as Sam 
Eisner reported to Council, is already underway).  But some on Council wanted 
to explicitly acknowledge this in the motion.
(4) We can replace “divergent”, as noted in Item (1) I’m not married to the 
term.  But the key point of this resolution was to ensure that the normal / 
minimum comment period be extended to at least 40 days.

I hope these address your concerns.  If not, please respond or propose 
alternative language.

Thanks—

J.

Thanks—
J.

On 11/21/16, 6:50 , "Amr Elsadr" <aelsadr@xxxxxxxxxxx> wrote:

    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>
    >