[cabfpub] [EXTERNAL]Re: ]RE: Ballot 194 - Effective Date of Ballot 193 Provisions is in the VOTING period (ends April 16)

[Ryan Sleevi]

On Mon, Apr 17, 2017 at 11:06 AM, Dean Coclin via Public <
public at cabforum.org> wrote:

> Speaking as former chair, I would like to offer my observations on this:
>
>
>
> 1.       I think everyone was unaware and surprised to see that a vote
> was counted from Microsoft since it did not appear on the public list
>
> 2.       Kirk, being cc’d on the message, would have no idea that the
> message didn’t make the public list. He saw the public list in the address
> field
>
> 3.       Gordon, as the sender of the message, would also be unaware that
> he did not have posting privs to the public list (unless the listserv
> notified him afterwards-Wayne-does our list serv do this?)
>
> 4.       Kirk counted the vote, unaware that the message never made it to
> the list but seeing it addressed to the list, assumed it did.
>
> 5.       I assume Gordon voted because Jody was away and unable to vote.
> (Suggestion for MSFT-Good idea to have a backup with posting privs ;-))
>
> 6.       In my opinion, Microsoft did nothing wrong and was following our
> bylaws in placing their vote in good faith
>

I agree with you on all of these points, and do not want any of the
concerns with Kirk's proposed resolution to be discounted on that, until
this point, there was a good faith engagement on both Microsoft and Kirk's
part, even if flawed.


> 7.       Would it have made a difference if they did not cc Kirk, not get
> their vote counted and then come out with a note saying, “Hey I voted,
> Here’s the email”? Maybe. Someone could claim that it was a fake email and
> there might be a whole other set of circumstances we’d have to deal with.
> But since Kirk was cc’d (and presumably the chair is not complicit with
> Microsoft) then it’s reasonable to say the vote is valid.
>
Under what basis with our Bylaws?

> 8.       The bylaws state that “votes not submitted to the public list
> will not be counted”. However, this vote was submitted to the public list.
> But the public list rejected the email. The bylaws are silent in this case.
>
If that was all the Bylaws stated, this would be a reasonable, if
undesirable, conclusion. However, they state more:

(d) Upon completion of the discussion period, Members shall have exactly
seven calendar days for voting, with the deadline clearly communicated in
the ballot and sent via the Public Mail List. All voting will take place
via the Public Mail List. Votes not submitted to the Public Mail List will
not be considered valid, and will not be counted for any purpose.

Further, this interpretation that "sending to public at cabforum.org is
posting" is not consistent with the rest of the Bylaws. If it was, then it
would mean that anyone can "post to the Public Mail List" by sending to
public at cabforum.org. However, we know that is not the case, because our
Bylaws specifically govern who can post to the public list (3.2(b), 3.3,
5.2)

I want to highlight Section 5.2 for you:
"Anyone else is allowed to subscribe to and receive messages posted to the
Public Mail List, which may be crawled and indexed by Internet search
engines"

Unless it can be demonstrated that this message was received by all
participants subscribed, and was able to be crawled and index by an
Internet search engine, I do not believe you can argue that the "posting"
requirement has been met. We must look at the entirity of the Bylaws, and
choosing this particular interpretation is not consistent.

> 9.       I believe the case Ryan referenced where an IPR exclusion notice
> was sent to the chair was a different circumstance. If memory serves, in
> that situation, the IPR policy specified that the sender only deliver to
> the Chair, not the public list.
>
There were two matters worth highlighting.

One, we had the situation where you were the only one to receive the
notice. In that situation, we accepted that the reading and interpretation
was correct - that was all that was required - and subsequently worked to
resolve that during the PAG process to ensure that notices are sent to the
public mail list as part of the IP review.

Two, we had the situation where you weren't immediately sending Review
Notices following Ballots, or aggregating them, as Ben had done. In this
scenario, we identified several possible resolutions, all of them
consistent with the letter of the Bylaws, which would have included you
sending a 'retroactive' notice that covered all such Ballots. This had
ample precedent, as it was what Ben had done regularly. However, for the
avoidance of doubt and conflict, instead a Ballot was proposed to resolve
this uncertainty and ambiguity, the full documents were readopted, and we
had a process where, despite Kirk's method of Ballots 180 - 182 (and his
similar disregard to comity by his approach of "If you don't like what I'm
doing by fiat, start your own Ballot"), we were able to successfully
resolve any ambiguity.

It does not seem unreasonable, or unprecedented, to highlight that in
matters of conflict, we have a defined process. It's not strawpolls and
doodle polls. It's not Chair fiat. It's ballots.
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