[CHALLENGE] Open Internet Order

[Sierra Lyricalia]

I don't believe I voted on Count 3.

My apologies. Do you have an opinion?

[Separatist Peoples]

I don't believe I voted on Count 3.

My apologies. Do you have an opinion?

I was actually going to say I think it's illegal, but upon reviewing the Operative Clause rule, I can't actually justify that. Sorry for the nitpicking. Legal on Count 3.

[Separatist Peoples]

My Dissent. I accidentally posted it on the regular forum, but deleted the post. Thats what I get for keeping a bunch of windows open.

I strongly dissent with my colleagues on this matter, not on the doctrinal question of legality, but on the structural and procedural inconsistencies this ruling creates.

Here, a clear majority of GenSec found this illegal. Though there isn't a majority, there is a clear plurality, and we have, in the past, had a plurality decision dispositive of legality without creating binding precedent under the principal of stare decisis. See National Control of Elections, Secretariat Archives (8 November 2016). Deviation from this is unsettling, and here it allows a proposal that was deemed illegal by four of six members to pass.

Admittedly, we are not bound blindly to stare decisis; we can overrule ourselves when necessary. In this case, however, the majority's deviation has built in a dangerous disparity between the threshold of legality for Legality Challenges and GenSec's Control Panel votes. For Panel votes, a proposal need only be found illegal by a majority. Our reasons need not line up. We could easily have six different rationales and still the proposal would be removed.

If the Legality Challenge voting procedure doesn't reflect the Panel procedure, a structural incentive for using that difference is created, as the threshold for an illegal proposal is different. For an identical proposal, it is now more likely that GenSec will find it Legal if it's assessed through Legality Challenges mechanism, and conversely more likely that it will be found Illegal if it's assessed via the Panel. That isn't fair, and is potentially exploitable.

For this reason, I dissent with my colleagues.

[Bears Armed]

My Dissent. I accidentally posted it on the regular forum, but deleted the post. Thats what I get for keeping a bunch of windows open.

I strongly dissent with my colleagues on this matter, not on the doctrinal question of legality, but on the structural and procedural inconsistencies this ruling creates.

Here, a clear majority of GenSec found this illegal. Though there isn't a majority, there is a clear plurality, and we have, in the past, had a plurality decision dispositive of legality without creating binding precedent under the principal of stare decisis. See National Control of Elections, [url=Secretariat Archives]https://forum.nationstates.net/viewtopic.php?p=30341749#p30341749[/url] (8 November 2016). Deviation from this is unsettling, and here it allows a proposal that was deemed illegal by four of six members to pass.

Admittedly, we are not bound blindly to stare decisis; we can overrule ourselves when necessary. In this case, however, the majority's deviation has built in a dangerous disparity between the threshold of legality for Legality Challenges and GenSec's Control Panel votes. For Panel votes, a proposal need only be found illegal by a majority. Our reasons need not line up. We could easily have six different rationales and still the proposal would be removed.

If the Legality Challenge voting procedure doesn't reflect the Panel procedure, a structural incentive for using that difference is created, as the threshold for an illegal proposal is different. For an identical proposal, it is now more likely that GenSec will find it Legal if it's assessed through Legality Challenges mechanism, and conversely more likely that it will be found Illegal if it's assessed via the Panel. That isn't fair, and is potentially exploitable.

For this reason, I dissent with my colleagues.

I'll sign on to this.

[Christian Democrats]

The analogy with the National Control of Elections case is inappropriate because, in that case, a majority agreed that the challenged proposal complied with the Blocker Rule. If we are erring on the side of holding proposals legal, as I believe we should, there is no inconsistency between that decision and this decision. Next, there was only one count in that case; in this case, there are three counts. In that case, four councilors agreed that the proposal complied with the Blocker Rule while disagreeing on the more technical point of the Blocker Rule's breadth.

[Separatist Peoples]

The analogy with the National Control of Elections case is inappropriate because, in that case, a majority agreed that the challenged proposal complied with the Blocker Rule. If we are erring on the side of holding proposals legal, as I believe we should, there is no inconsistency between that decision and this decision. Next, there was only one count in that case; in this case, there are three counts. In that case, four councilors agreed that the proposal complied with the Blocker Rule while disagreeing on the more technical point of the Blocker Rule's breadth.

We still lacked a majority while determining a question of legality. Given our limited precedent, it is sufficient.

[Glen-Rhodes]

NCE was legal without GenSec reaching a true majority opinion because *the default status of proposal is that they're legal*. If we hold a vote and each outcome is "legal", then it's common sense that the proposal is legal. We shouldn't be bending over backwards to find a reason to declare a proposal illegal, when a majority of us can't agree on a reason.

[Separatist Peoples]

NCE was legal without GenSec reaching a true majority opinion because *the default status of proposal is that they're legal*. If we hold a vote and each outcome is "legal", then it's common sense that the proposal is legal. We shouldn't be bending over backwards to find a reason to declare a proposal illegal, when a majority of us can't agree on a reason.

Four players found it illegal. Out of six. I've already outlined the reasons why this is undesirable.

[Christian Democrats]

NCE was legal without GenSec reaching a true majority opinion because *the default status of proposal is that they're legal*. If we hold a vote and each outcome is "legal", then it's common sense that the proposal is legal. We shouldn't be bending over backwards to find a reason to declare a proposal illegal, when a majority of us can't agree on a reason.

Four players found it illegal. Out of six. I've already outlined the reasons why this is undesirable.

To paraphrase what I posted in another thread, we should be giving the benefit of the doubt to players.

Example: Joe has been charged with two crimes: α and β. Each crime carries a mandatory sentence of two years. Twelve jurors -- A through L -- are selected for the case; and, at the end of the arguments, they vote on the charges as follows:

Crime α
Guilty -- A, B, C, D, E, F
Not Guilty -- G, H, I, J, K, L

Crime β
Guilty -- G, H, I, J, K, L
Not Guilty -- A, B, C, D, E, F

The judge, in this hypothetical legal system, knows exactly how the individual jurors have voted (the above); and he has the discretion to order Joe's imprisonment based on the jury's findings, expressed through its votes. Should he or should he not put Joe in prison for two years? After all, all 12 jurors are convinced and have found that Joe has committed some crime that warrants a two-year sentence.

[Separatist Peoples]

It's important to note that we aren't depriving people of liberty here. We're enforcing a ruleset on a game. The reasons aren't as compelling as in a trial. A majority of GenSec found it illegal. That's good enough for the Panel tool. I don't see why that should be different elsewhere.

Doing so creates an imbalance in the system. It's now easier to find something illegal via Panel than by challenge. Those should be the same.

[Christian Democrats]

It's important to note that we aren't depriving people of liberty here.

We are depriving them of a sort of liberty (expression) and even property (money) if they used telegram stamps.

We're enforcing a ruleset on a game. The reasons aren't as compelling as in a trial.

I agree. That is why we operate on the basis of majoritarianism and not unanimity. Nobody's life or physical liberty is at stake.

A majority of GenSec found it illegal. That's good enough for the Panel tool. I don't see why that should be different elsewhere.

If all of us had voted on this proposal in the Panel -- two legals and four illegals -- it would have been held. During the hold, we would have reached the exact same conclusion that we reached here. Subsequently, the proposal would have been released for a vote.

Doing so creates an imbalance in the system. It's now easier to find something illegal via Panel than by challenge.

No, it isn't. Illegal votes in the Panel have only the effect of holding proposals that reach quorum. Once we deliberate and make a decision, the proposal is either released for a vote or discarded and deleted. This proposal would have been held, then released.

Voting on the questions separately, as a jury would do, gives an advantage to authors -- an advantage that is warranted.

[Sciongrad]

Voting on the questions separately, as a jury would do, gives an advantage to authors -- an advantage that is warranted.

I agree. Like I said in the discord chat, our goal should be to clarify the rules, not hold up the game whenever the opportunity presents itself. I still haven't heard a compelling reason we should allow a plurality of two to be sufficient grounds for removing a proposal. As CD said, the game mechanics argument is not persuasive because even if all six of us declared a proposal illegal for different reasons, that wouldn't automatically discard it. The majority of us would still reach the same conclusion that we've reached here. The legal system should give the author all reasonable advantages.

[Christian Democrats]

Maybe, we should handle this decision with a per curiam opinion.

• Section I -- the standards for striking down proposals; a majority agrees that a particular rule has been violated.
• Section II -- Open Internet Order does not violate the enforcement clause of Resolution 2.
• Section III -- Open Internet Order does not violate the investigation clause of Resolution 2.
• Section IV -- Open Internet Order does not violate the Operative Clause Rule.

At the end of the opinion, note the individuals who join. For instance:

Section I is joined by Christian Democrats, Glen-Rhodes, Sciongrad, and Sierra Lyricalia. Section II is joined by Bears Armed, Christian Democrats, Glen-Rhodes, and Sciongrad. Section III is joined by all members of the Secretariat. Section IV is joined by Christian Democrats, Glen-Rhodes, Separatist Peoples, and Sierra Lyricalia.

Any concurrences and dissents would be listed separately and below.

[Glen-Rhodes]

It's important to note that we aren't depriving people of liberty here.

No, but you are taking down people's hard work without a clear reason. We have two alleged violations here, A and B. If we had two different drafts before us -- one with Violation A, but without B; and one with B, but without A -- both drafts would be a-ok. It doesn't make sense for a third draft with both A and B to be taken down, if you wouldn't take the other two down as well. You have no solid reason, with the backing of a majority of us, to give the author. That's something we've said in the past we're going to avoid.

[Bears Armed]

Of course there's the also fact that a majority of us marking a submitted proposal as illegal for one reason or another, even without a majority agreeing that it is illegal for any one specific reason, is enough to place it on 'hold'...

[Glen-Rhodes]

And once on hold, we discuss it, and if a majority can't reach the same illegality decision, we should adjust our voting accordingly to let it go to the floor.

[Christian Democrats]

Maybe, we should handle this decision with a per curiam opinion.

• Section I -- the standards for striking down proposals; a majority agrees that a particular rule has been violated.
• Section II -- Open Internet Order does not violate the enforcement clause of Resolution 2.
• Section III -- Open Internet Order does not violate the investigation clause of Resolution 2.
• Section IV -- Open Internet Order does not violate the Operative Clause Rule.

At the end of the opinion, note the individuals who join. For instance:

Section I is joined by Christian Democrats, Glen-Rhodes, Sciongrad, and Sierra Lyricalia. Section II is joined by Bears Armed, Christian Democrats, Glen-Rhodes, and Sciongrad. Section III is joined by all members of the Secretariat. Section IV is joined by Christian Democrats, Glen-Rhodes, Separatist Peoples, and Sierra Lyricalia.

Any concurrences and dissents would be listed separately and below.

Thoughts?

[Sierra Lyricalia]

Maybe, we should handle this decision with a per curiam opinion.

• Section I -- the standards for striking down proposals; a majority agrees that a particular rule has been violated.
• Section II -- Open Internet Order does not violate the enforcement clause of Resolution 2.
• Section III -- Open Internet Order does not violate the investigation clause of Resolution 2.
• Section IV -- Open Internet Order does not violate the Operative Clause Rule.

At the end of the opinion, note the individuals who join. For instance:

Section I is joined by Christian Democrats, Glen-Rhodes, Sciongrad, and Sierra Lyricalia. Section II is joined by Bears Armed, Christian Democrats, Glen-Rhodes, and Sciongrad. Section III is joined by all members of the Secretariat. Section IV is joined by Christian Democrats, Glen-Rhodes, Separatist Peoples, and Sierra Lyricalia.

Any concurrences and dissents would be listed separately and below.

Thoughts?

Looks like a good structure to me. It also looks like my post here contains the most that any of us have put into saying Count 2 ("investigations") held no water, so I'll fluff it into something publishable (but still brief) soon.

[Separatist Peoples]

Where are we here?

[Sierra Lyricalia]

OK, constructing this as per CD's suggested layout. See below for what I've got so far. I put in my dissent for Section II and a draft for the unanimous opinion of Section III; as well as SP's dissent for Section I. What we are still missing:

- Majority opinion for Section I;
- Majority opinion for Section II;
- Majority opinion for Section IV;
- Dissent for Section IV (Sciongrad or Bears Armed)

I don't have the wherewithal to do further work on this tonight (or during the day tomorrow); who wants to tackle some of these? I'm happy to try to hammer something out for the majorities in Section I or IV, though of course others are welcome to ninja me on that. Obviously someone else has to tackle the majority for Section II and any Section IV dissent.

Please post explicitly to join opinions or make corrections or suggestions. This is a complicated enough beast without even mentioning concurrences, so I hope we can manage a simple majority/dissent binary for each question.

---

Full Secretariat Ruling on "Open Internet Order"


Section I
Standards for Striking Down Proposals

<Author>:

Section II
Count 1: Contradiction of GAR #2 due to power to "enforce" resolution above and beyond issuing fines without limiting factors listed.

<Author>:

Section III
Count 2: Contradiction of GAR #2 due to power to investigate private entities within member states for violations of the proposed law

Sierra Lyricalia:
We find unanimously that there is no GAR #2 contradiction from a power to investigate. The power to "investigate" a breach of the law is not exclusive to law enforcement agencies; courts; regulatory agencies, or even governments, full stop. Journalists, lawyers, and private citizens also investigate breaches of the law, and don't need anyone's particular permission to do so. None of them are acting as police.

In the General Assembly specifically, WA committees "investigate" breaches of international law all the time. We specifically upheld the legality of the proposal that became GAR #390, which contains the word "investigate" or "investigation" in four of its five clauses, including the first, which clearly indicates the committee is doing the investigating. One might respond, "Well, they're investigating nations, not private entities!" But in a WA that contains feudal and corporate states, there is sometimes no difference between those, and thus even in the abstract it must be theoretically possible for a WA committee to investigate breaches by private actors.

Beyond that, even ignoring the WA committees required to "liase" or otherwise coordinate with member states' law enforcement authorities to investigate breaches of the law, there are two other resolutions which explicitly give their committees the right to conduct investigations in their own right: the now-repealed GAR #70, and the still extant GAR #68.

We see no issue with investigatory powers bestowed on a WA committee, and therefore find the resolution legal as to Count 2.

Section IV
Count 3: Proposal Basics rule violation due to having no clause operative upon member states' governments.

<Author>:

Dissenting Opinions

Separatist Peoples, joined by Bears Armed:

I strongly dissent with my colleagues on this matter, not on the doctrinal question of legality, but on the structural and procedural inconsistencies this ruling creates.

Here, a clear majority of GenSec found this illegal. Though there isn't a majority, there is a clear plurality, and we have, in the past, had a plurality decision dispositive of legality without creating binding precedent under the principal of stare decisis. See National Control of Elections, Secretariat Archives (8 November 2016). Deviation from this is unsettling, and here it allows a proposal that was deemed illegal by four of six members to pass.

Admittedly, we are not bound blindly to stare decisis; we can overrule ourselves when necessary. In this case, however, the majority's deviation has built in a dangerous disparity between the threshold of legality for Legality Challenges and GenSec's Control Panel votes. For Panel votes, a proposal need only be found illegal by a majority. Our reasons need not line up. We could easily have six different rationales and still the proposal would be removed.

If the Legality Challenge voting procedure doesn't reflect the Panel procedure, a structural incentive for using that difference is created, as the threshold for an illegal proposal is different. For an identical proposal, it is now more likely that GenSec will find it Legal if it's assessed through Legality Challenges mechanism, and conversely more likely that it will be found Illegal if it's assessed via the Panel. That isn't fair, and is potentially exploitable.

For this reason, I dissent with my colleagues.

Sierra Lyricalia:

I believe the proposal "Open Internet Order" (subsequently enacted as GA Resolution #395) is illegal for contradicting GAR #2, Article 10, which prohibits the WA or entities acting on behalf of the WA from engaging in military or police activity. The source of the violation is Clause 6, which empowers its committee "...to issue fines, enforce provision(s) of this resolution and conduct investigations[.]" If the resolution had limited itself to investigations and issuing fines, or to investigations and enforcement, I would say it deserves the benefit of the doubt. Issuing fines is a method of enforcement; regulatory agencies that do not have police powers issue fines all the time. The problem is that the resolution explicitly differentiates between issuing fines on the one hand, and other forms of enforcement on the other.

That clear contrast is what makes this illegal. The power to issue fines is one thing. There is precedent for a WA agency directly collecting fines from private entities, as in GAR #113. But the instant proposal asserts an enforcement power in addition to its power to levy fines. If it only said fines, that would be fine; or if it only said "enforce" it would deserve the benefit of reasonable doubt. Barring any context for what "enforcement" entails, and in the absence of the contrast of issuing fines, the Secretariat would be obligated to interpret the enforcement power as precisely that sort of merely regulatory jurisdiction. But the resolution explicitly claims the power of enforcement separately from the power to levy fines. It lays no limits on that power of enforcement, gives no further context, does not clarify "by civil penalty" or "by revocation of corporate charter" or anything. It only uses the open-ended "enforce." The law means what the law says, and thus I must find the resolution illegal.

(Scion or Bears):

[Separatist Peoples]

My dissent is universally applicable. No need to break it down.

[Sierra Lyricalia]

Grossly over-thorough Section I draft: Procedural Principle of Majority Agreement on Rule Citation

(yes, yes, I am well aware my writing style is too damn long. Sometimes that's just how long arguments take But as I say, "draft;" and I'll be cutting and trimming, and if you think part of it is truly unnecessary, like a bathtub on a motorcycle, please feel free to take an axe to it.)

The proposal at hand was challenged on three separate counts. On all three counts individually, the proposal has been upheld. Yet a majority of the Secretariat believes it is illegal. We must decide which is more important: keeping marginally illegal proposals from reaching the floor; or protecting proposal authors from the apparent whim of a draconian and schizophrenic board of overseers who can't even agree amongst themselves why, exactly, they are invalidating a given proposal. We believe the Secretariat has an obligation to authors to come to a majority agreement on what rule is actually being broken before invalidating a challenged proposal.

In the GA forum, the Secretariat has been compared to the United States Supreme Court, and to constitutional courts in general, in that our job is to interpret the underlying rules' application to particular cases so as to judge whether a given proposal is legal. If the similarity is close enough, we then ought to use similar procedural rules: a simple majority vote by the "court" in favor of one result should be enough to base a verdict on - regardless of the underlying reasoning for the members' votes.

Ignoring for a moment the fact that even the U.S. Supreme Court has trouble with that sometimes, the plain fact is that the Secretariat is not the Supreme Court. SCOTUS's main job is to keep unconstitutional laws from oppressing the populace, and to prevent constitutional laws from being applied in unconstitutional ways. They do not have any obligation to the other branches of government to make sure their feelings don't get hurt; they are not there to promote a community of legislators that would otherwise wither; they're not tasked with helping congresspersons write better laws, and they are certainly not supposed to be commenting on bills during drafting, nor boosting authors' confidence and ability. The Secretariat has all of those obligations, and taken together they make the SCOTUS model of procedure inappropriate for our use.

While it is undeniable that the Secretariat's primary job is to keep illegal proposals from reaching the queue in lieu of having moderators do it, we also have an obligation to keep the GA community engaged. When SCOTUS overturns a law, that does not put a damper on the community that writes U.S. laws. They strive for consistency, but when they flout it ex cathedra that doesn't cause congresspersons to ragequit their paid jobs. The Secretariat, on the other hand, must always be accessible; and we have even a higher obligation to be consistent, since the community we're serving isn't being paid to be here.

Practically, then, that boils down to one procedural necessity. An overly simplistic plurality-concurrence model of overturning a proposal will not work for the current GA. By NS historical standards, the General Assembly right now is positively anemic, in great danger of becoming a desolate old-man bar way out in the boonies, with nobody but the regulars ever there, nobody doing anything besides drinking the same drinks and rehashing the same old arguments for the Nth time. In order to bring in new blood, then, the game must be appealing. In order to be appealing, the game must be learnable, and in order to be learnable it must be consistent. Maximum consistency can only be achieved if the Secretariat is as conservative as possible in deciding when to strike down proposals for marginal illegalities. We may not always agree on precisely how a proposal violates a particular rule (see the opinions in the Peacekeeping Charter case), but in order to knock it down we must at least agree on what rule is being violated. There, all six of us agreed that the proposal contradicted Article 10 of GAR #2, even if we thought so for different reasons.

The alternative to that is an utter mishmash of lockdowns. If a challenged proposal can be struck down because four different secretaries have three different opinions as to what is going on with it, proposal authors will have little chance of ever hearing a consistent story about how to proceed. Marginal proposals will have a nearly random chance of being upheld vs. struck. If Proposal X is struck down on two different concurrences, with two secretaries each subscribing to a Count A violation and a Count B violation, that's it for Proposal X. But say Proposal Y comes along next week, containing the same Count A violation but lacking the Count B violation. The Secretariat votes 4-2 that it's legal, and it goes to vote and passes. Now you have a resolution on the books containing an illegality that helped get another proposal scrubbed a week ago. Author A has no expectation of consistency from this body. To be consistent, we must allow either all of these marginal cases to go through, or none of them. But allowing none of them to go through would be utter tyranny: a single secretary could strike a resolution he doesn't like, and nobody could do a damn thing about it. Therefore we must have majority agreement on what rule to use to strike a proposal; and let the others through even if all six of us think it's illegal for differing reasons.

[Separatist Peoples]

Shouldn't your majority opinion be in regard to the substantive legality? This seems to ignore the substantive arguments made.

[Sierra Lyricalia]

Shouldn't your majority opinion be in regard to the substantive legality? This seems to ignore the substantive arguments made.

Those are addressed in Sections II-IV. I wrote out a proposed unanimous opinion in Sec. III (Count 2), and my dissent for Section II (Count 1). Others must write the majority for Sec. II and any dissent for Sec. IV; or else come up with a wholly different structure than the one CD proposed, I agreed to, and nobody else commented on.

I'll keep hacking off bits of the job if nobody else has time to write anything out, I suppose... nobody has a strong opinion on the three remaining items (majority sec. II, majority sec. IV, dissent sec. IV)??

[Separatist Peoples]

Shouldn't your majority opinion be in regard to the substantive legality? This seems to ignore the substantive arguments made.

Those are addressed in Sections II-IV. I wrote out a proposed unanimous opinion in Sec. III (Count 2), and my dissent for Section II (Count 1). Others must write the majority for Sec. II and any dissent for Sec. IV; or else come up with a wholly different structure than the one CD proposed, I agreed to, and nobody else commented on.

I'll keep hacking off bits of the job if nobody else has time to write anything out, I suppose... nobody has a strong opinion on the three remaining items (majority sec. II, majority sec. IV, dissent sec. IV)??

This is exactly why I didn't want to see opinions done this way. That sounds like a bloody mess.