[cabfpub] Ballot process ordering (2)

[Ryan Sleevi]

On Wed, Nov 2, 2016 at 3:05 PM, Kirk Hall via Public <public at cabforum.org>
wrote:

> Of course, the PAG will not be providing legal advice to any member.  In
> the end, the ballot might be modified by the proposer and two endorsers
> (which would probably trigger another discussion period and another 30 day
> Review Period to see what happens – not a bad idea if the Forum is about to
> incorporate a guideline that is subject to someone’s IP, and is not
> available under a RF license), or the proposer and/or endorsers might
> decide to withdraw the ballot entirely, in which case the guideline would
> not be added or amended.  Or the Forum members may vote “no” on the ballot
> after they receive the PAG report, in which case the changes to the
> guidelines will not occur.
>
While this is all useful feedback (although largely, the parts I excised
are already specifically addressed in our IPR policy), I believe this still
leaves particular ambiguity about how you see this procedure working, so
perhaps you could elaborate further, procedurally, on how you see things
flowing.

Referring to Gerv's original text here:
1) Ballot Formulation
2) Optional Straw Poll
3) Discussion Period*
4) IPR Review Period
5) PAG, if necessary
6) Voting Period
7) "Approval"
8) Document is updated

Question #1) If an exclusion notice is received in Step 4, is there a
minimum time before Step 5 is executed? Is there a maximum time?
Question #2) If a PAG is formed at Step 5, at what point does Step 6
trigger? More specifically, Section 2.2 of our bylaws state:
"(d) The CA/Browser Forum shall provide seven calendar-days for voting,
with the deadline clearly communicated via the members’ electronic mailing
list. All voting will take place online via the members’ electronic mailing
list. " . If Step 1 represents the formulation of a Ballot, then we cannot
achieve that requirement until we know the result of Step 5, but we cannot
reach Step 5 until we've completed Step 1.
Question #3) Is there a maximum time for the PAG to report before
proceeding to Step 6? Can members of the PAG prevent completion of the PAG?
The rules are not spelled out.
Question #4) If the proposers of the ballot make no modifications to the
Ballot (in response to Step 5), despite the recommendations of the PAG (to
rescind or modify, for example), and it goes forward to voting, is it valid
of the Ballot passes by the members? If so, is that consistent with Section
2 of the IPR policy, which both you and Virginia have provided as support
for Position 1?

Per Virginia’s postings in the past, this is exactly the type of informed,
> deliberative process our IPR Policy is intended to create.  But until we
> create a PAG to examine Exclusion Notice claims for the first time, perhaps
> with Ballot 182, we won’t really know – it’s all new territory.
>

I would like to suggest that, regardless of the position - Position 1 or 2
- you withdraw Ballots 180, 181, and 182 until we can resolve questions
about the nature and formation of a PAG, so that we do not have any issues
or conflict if and when a PAG is convened. I do hope that the above
questions, posed above, establish that there's sufficient procedural
uncertainty that, in the face of an Exclusion Notice, there will be
considerable concern about how the PAG is to be convened, how its results
are interpreted, how the PAG is to conclude, and how, procedurally, the
process should follow after that fact.

While Ballots 180 and 181 are "hoped" to be free from exclusion notices, we
cannot be certain of them - and as we saw, Ballot 181 has already been
modified during the F2F to avoid possible Exclusion Notices, so we cannot
assume we've got it right.

By putting forth a ballot to specify this procedure, we set ourselves up to
avoid the issues and uncertainty of the past, by formalizing whatever
understanding the broader Forum reaches consensus on.
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