There’s a third option, but the results are the same as #1. IMO, the current results fall in a grey area not adequately addressed by the CAB Forum process. Therefore, the results of the ballot are “Indeterminant” (or something similar) as the process required by the bylaws wasn’t followed. Although the net result is the same as “fail” (meaning the ballot didn’t pass), an indicator that something unexpected happened preserves a more accurate historical record and avoids some of the negativity of the word “fail”.
Regardless, I think the forum should move to a better voting platform than email. There’s better solutions out there than email that retain public disclosure but aren’t as susceptible to errors. From: Public [mailto:public-boun...@cabforum.org] On Behalf Of Dean Coclin via Public Sent: Monday, April 17, 2017 12:47 PM To: Ryan Sleevi <sle...@google.com>; CA/Browser Forum Public Discussion List <public@cabforum.org> Cc: Dean Coclin <dean_coc...@symantec.com> Subject: Re: [cabfpub] [EXTERNAL]Re: ]RE: Ballot 194 - Effective Date of Ballot 193 Provisions is in the VOTING period (ends April 16) “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.” I think this is the crux of the matter at hand. There are different interpretations of “posting” and interpreting it one way or the other is the cause of the issue. Looking at “entirety” is one way. Looking at “intent” is another. I remember a time when we did not have public voting. Then a change was made, with the intent being to inject transparency into the voting process and publicly disclose where CAs and Browsers came down on issues. It would seem this intent is satisfied by the chair’s disclosure of the votes online. I’m not arguing either way, just pointing out the viewpoints. So what are the possible solutions?: 1. Do not count Microsoft’s vote. The ballot then fails. I’m guessing the proponents will post a new ballot stating the same thing and is voted on again. The bylaw ambiguity should be clarified in a different ballot. 2. Count Microsoft’s vote. The ballot passes. Clarify the bylaw ambiguity in a new ballot. These are really the only possible ways forward under our bylaws. The Chair and Vice-Chair can’t be asked to make a ruling since they could be biased one way or the other on the outcome. From: Ryan Sleevi [mailto:sle...@google.com] Sent: Monday, April 17, 2017 11:22 AM To: CA/Browser Forum Public Discussion List <public@cabforum.org <mailto:public@cabforum.org> > Cc: Kirk Hall <kirk.h...@entrustdatacard.com <mailto:kirk.h...@entrustdatacard.com> >; Dean Coclin <dean_coc...@symantec.com <mailto:dean_coc...@symantec.com> > Subject: Re: [cabfpub] [EXTERNAL]Re: ]RE: Ballot 194 - Effective Date of Ballot 193 Provisions is in the VOTING period (ends April 16) On Mon, Apr 17, 2017 at 11:06 AM, Dean Coclin via Public <public@cabforum.org <mailto:public@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@cabforum.org <mailto:public@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@cabforum.org <mailto:public@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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