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

[Amr Elsadr <aelsadr@xxxxxxxxxxx>]

Hi James,

Thank you for this. It’s quite reassuring, and the accept vs. approve/adopt 
terminology makes sense to me now. I won’t suggest any amendments to the motion 
until I’ve had a chance to discuss this further with the NCSG. But thanks 
again, James. Your responses were very helpful in helping me prep for that 
discussion.

Amr

> On Nov 21, 2016, at 6:33 PM, James M. Bladel <jbladel@xxxxxxxxxxx> wrote:
> 
> 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>
>> 
> 
> 
>