October 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
by Edward Morris Oct. 1, 2015

Oct. 1, 2015

Hi Jordan, I appreciate the spirit in which this thread is intended. --That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all. So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers. I disagree with this premise with regards the inspection right. I've certainly made that a central component of what I've tried to accomplish here. Kieren has been a strong advocate, as well, calling it a "red line"; --- On 07/08/2015 11:37 PM, Kieren McCarthy wrote: A quick view specifically on "rights of inspection". I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements. It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls. (See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group. To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains. Kieren ----- I agree with Kieren. One of the reasons I've been content with putting transparency in work stream 2 is I've known the Inspection right came with membership in work stream 1. If that is to be excised then we need to do transparency in work stream 1. You can not have accountability without transparency. I've been involved in reconsideration requests where we have fought and lost in our attempts to get documents from ICANN that would have allowed us to have a chance of winning either the reconsideration or the IRP that would conceivably follow. Without access to documents many of the reforms we're proposing will be of minimal value to litigants. Of course, I await the specifics of the discovery mechanisms that will accompany the IRP and reconsideration reforms. I've watched as many "fears" of the legally uneducated became "truths" when repeated enough. I saw the concept of the derivative lawsuit, a power that should be welcomed by anyone interested in true accountability, so misconstrued and tangled CCWG members and participants acted out of fear this legal right could be used on a regular basis for anything, rather than what it is: a remedy designed for use in extreme situations as protection against double dealing and other types of corporate malfeasance. Rather than try to explain Inspection beyond what Kiernen has done above let me ask this: 1. Why don't we want the right of Inspection (aka in ICANN circles as the Auerbach rights)? 2. If we have them why do we want to create high thresholds for the use of those powers? Tell me how these two positions strengthen ICANN's accountability to a greater degree than inspection rights with low thresholds. And, perhaps most of all, where has the discussion occurred leading one and all to believe that we don't want these rights? Point to the thread, the legal advice etc. I've seen the big FUD over derivative rights. Where is something similar, or honest rejection of Inspection rights? Don't assume these are not important issues to some of us merely because we haven't been discussing them. They were in all of the proposals that have gone out for public comment. There is little need to fight for something you already have. I'm looking forward to receiving an analysis of the public comments to see this outpouring of opposition to the inspection rights. It must be there because I'm hard pressed to find extensive opposition anywhere else. Do we need these rights? Well, if we are going to dump them we need a complete revamp of ICANN's transparency policy to be done in work stream 1. No transparency, no accountability. No accountability, no transition. Best, Ed - I reproduce here California Corporations Code §8333: The accounting books and records and minutes of proceedings of the members and the board and committees of the board shall be open to inspection upon the written demand on the corporation of any member at any reasonable time, for a purpose reasonably related to such person's interests as a member. This is the heart of the Inspection right. It is so key I'll give it a name: the Anti-FIFA clause. It is a guarantee the corruption at FIFA will not happen at the new ICANN. The anti-FIFA clause is the principle reason I strongly support the Inspection right.

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Yesterday's call
by Dr Eberhard W Lisse Oct. 1, 2015

Oct. 1, 2015

Hi, can someone send a short summary of what transpired yesterday to the list? Maybe we should in fact do this for all calls? el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
by Alan Greenberg Oct. 1, 2015

Oct. 1, 2015

I didn't say that is how it is happening, I said that was what the CCWG was planning. Alan At 30/09/2015 08:50 PM, Greg Shatan wrote: >Given Larry Strickling's statement about the >readiness of our report, "final adjustments" is >probably an understatement. The overall >framework may only need final adjustments, but >we have some significant gaps to fill and a >communications approach that may need a significant re-think. > >Greg > >On Wed, Sep 30, 2015 at 8:00 PM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> wrote: >Ed, I didn't ask why we had not ever discussed >it, but rather why we are now saying it had to >be included in the current proposal. I was a >member of the ATRT2 and am more than painfully >aware how ineffective the DIDP is, and I have >LONG campaigned for more transparency and availability of internal documents. > >The CCWG process is somewhat stalled due to the >reaction of the Board to our draft proposal, but >it was the draft that the CCWG was planning to >make some final adjustments to and submit as >final. The transparency and access issues were >not mentioned. I believe that it is a WS2 issue >and discussing it now will do nothing but >obfuscate the real issues that we need to address. > >Alan > > >At 30/09/2015 06:59 PM, Edward Morris wrote: >>HI Alan, >> >>I've raised this issue intermittently >>throughout our work. In Istanbul, Steve >>DelBianco kindly called upon me to talk about >>the failings of the DIDP to highlight the >>problem. In Buenos Aires, I raised the issue >>again and Thomas suggested towards the end of >>the meeting that perhaps we could move some >>transparency reform to work stream 1. Nothing became of that. >> >>This is not something we want to do in a rushed >>manner. Although simplistic on the face, much >>of what we need to do here is quite technical, >>involves state specific statutes (privacy, for >>example) and needs to be done carefully with >>the community working closely with ICANN staff, >>even in areas we may have some differences, in >>order to achieve an optimal outcome. I was >>quite happy with the status quo reference model >>whereby the community would have access in >>extraordinary situations to the most important >>documentation fairly soon through WS! >>(inspection rights via membership) while the >>more comprehensive and structural reforms would >>be developed in WS2. Now that we're faced with >>apparently serious proposals to eliminate both >>WS 2 (Board proposal) and membership, >>consideration needs to be given to other ways >>to tackle transparency within the CCWG effort. >> >>I should let people know that I've been working >>with Farzaneh Badii and Sarah Clayton on an >>analysis of all DIDP requests and responses. >>We're looking not only at quantifying things >>like success rates and DCND (defined conditions >>of nondisclosure) rejection rates but are also >>attempting to evaluate whether concerns that >>have been expressed to me privately by multiple >>Board members (for example, improper use of the >>DIDP by litigants in legal actions against >>ICANN as a substitution for / replacement of >>permissible discovery) are valid. The project >>is well underway and we hope to be able to >>present the results to everyone prior to our Dublin meeting. >> >>Best, >> >>Ed Morris >> >> >>---------- >>From: "Alan Greenberg" >><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> >>Sent: Wednesday, September 30, 2015 8:55 PM >>To: "Robin Gross" >><<mailto:robin@ipjustice.org>robin(a)ipjustice.org>, >>"Accountability Cross Community" >><<mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org> >>Subject: Re: [CCWG-ACCT] A way to avoid the >>'The Single Member Can Do Anything!' problem >> >>How is it that this was not on our original list of requirements? >> >>Alan >> >>At 30/09/2015 03:08 PM, Robin Gross wrote: >>>Agree 100%. We would be sorely amiss in our >>>duty to enhance ICANN's accountability if we >>>did not address the concerns about transparency in decision making at ICANN. >>> >>>Robin >>> >>> >>>On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote: >>> >>>>Transparency of Board meetings and >>>>deliberations is long overdue and sorely >>>>needed. It should be the rule with very narrow exceptions. >>>> >>>>Sunlight is the best disinfectant. >>>> >>>>Philip S. Corwin, Founding Principal >>>>Virtualaw LLC >>>>1155 F Street, NW >>>>Suite 1050 >>>>Washington, DC 20004 >>>><tel:202-559-8597>202-559-8597/Direct >>>><tel:202-559-8750>202-559-8750/Fax >>>><tel:202-255-6172>202-255-6172/Cell >>>> >>>>Twitter: @VLawDC >>>> >>>>"Luck is the residue of design" -- Branch Rickey >>>> >>>>Sent from my iPad >>>> >>>>On Sep 29, 2015, at 10:24 PM, Edward Morris >>>><<mailto:egmorris1@toast.net>egmorris1(a)toast.net> wrote: >>>> >>>>>Hi Jordan, >>>>> >>>>>I appreciate the spirit in which this thread is intended. >>>>> >>>>> >>>>>--That is, aside from the five community >>>>>powers and the ability to enforce the bylaws >>>>>against the Board, the other powers the >>>>>California law grants to member/s (document >>>>>inspection, dissolve the company, etc), >>>>>should face such high thresholds to action >>>>>that they can, practically speaking, never be actioned at all. >>>>>So how to resolve this? The CCWG's choice of >>>>>a Single Member (following its earlier >>>>>choice of multiple members) was to meet the >>>>>accountability requirements the community >>>>>has asked for. But nobody asked for the community to have these other powers. >>>>> >>>>> >>>>>I disagree with this premise with regards >>>>>the inspection right. I've certainly made >>>>>that a central component of what I've tried >>>>>to accomplish here. Kieren has been a strong >>>>>advocate, as well, calling it a "red line"; >>>>> >>>>>--- >>>>> >>>>>On 07/08/2015 11:37 PM, Kieren McCarthy wrote: >>>>>A quick view specifically on "rights of inspection". >>>>>I think enabling that some entity gets this right would be one of the >>>>>most useful of all possible accountability improvements. >>>>>It would - perhaps over time - pull out any motivations that might exist >>>>>for ICANN to be misleading or less than truthful in its reporting. This >>>>>is going to be especially important as ICANN receives increasingly large >>>>>amounts of revenue and particularly given its current weak financial >>>>>controls. >>>>>(See: >>>>><http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/>http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) >>>>>I predict that ICANN corporate will fight hard to prevent any entity >>>>>from gaining this right. And that it will continue to fight hard even >>>>>when someone has that right. That in itself should be a good indicator >>>>>for why it should be a redline for the accountability group. >>>>>To my mind, not allowing ICANN to hide information is the epitome of >>>>>actual accountability. If you can't hide it, then to save on >>>>>embarrassment you consider how best to share >>>>>it. Over time, everyone gains. >>>>> >>>>>Kieren >>>>> >>>>>----- >>>>>I agree with Kieren. One of the reasons I've >>>>>been content with putting transparency in >>>>>work stream 2 is I've known the Inspection >>>>>right came with membership in work stream 1. >>>>>If that is to be excised then we need to do >>>>>transparency in work stream 1. You can not >>>>>have accountability without transparency. >>>>>I've been involved in reconsideration >>>>>requests where we have fought and lost in >>>>>our attempts to get documents from ICANN >>>>>that would have allowed us to have a chance >>>>>of winning either the reconsideration or the >>>>>IRP that would conceivably follow. Without >>>>>access to documents many of the reforms >>>>>we're proposing will be of minimal value to >>>>>litigants. Of course, I await the specifics >>>>>of the discovery mechanisms that will >>>>>accompany the IRP and reconsideration reforms. >>>>> >>>>>I've watched as many "fears" of the legally >>>>>uneducated became "truths" when repeated >>>>>enough. I saw the concept of the derivative >>>>>lawsuit, a power that should be welcomed by >>>>>anyone interested in true accountability, so >>>>>misconstrued and tangled CCWG members and >>>>>participants acted out of fear this legal >>>>>right could be used on a regular basis for >>>>>anything, rather than what it is: a remedy >>>>>designed for use in extreme situations as >>>>>protection against double dealing and other types of corporate malfeasance. >>>>> >>>>>Rather than try to explain Inspection beyond >>>>>what Kiernen has done above let me ask this: >>>>>1. Why don't we want the right of Inspection >>>>>(aka in ICANN circles as the Auerbach >>>>>rights)? 2. If we have them why do we want >>>>>to create high thresholds for the use of >>>>>those powers? Tell me how these two >>>>>positions strengthen ICANN's accountability >>>>>to a greater degree than inspection rights with low thresholds. >>>>> >>>>>And, perhaps most of all, where has the >>>>>discussion occurred leading one and all to >>>>>believe that we don't want these rights? >>>>>Point to the thread, the legal advice etc. >>>>>I've seen the big FUD over derivative >>>>>rights. Where is something similar, or >>>>>honest rejection of Inspection rights? Don't >>>>>assume these are not important issues to >>>>>some of us merely because we haven't been >>>>>discussing them. They were in all of the >>>>>proposals that have gone out for >>>>>public comment. There is little need to >>>>>fight for something you already have. I'm >>>>>looking forward to receiving an analysis of >>>>>the public comments to see this outpouring >>>>>of opposition to the inspection rights. It >>>>>must be there because I'm hard pressed to >>>>>find extensive opposition anywhere else. >>>>> >>>>>Do we need these rights? Well, if we are >>>>>going to dump them we need a complete revamp >>>>>of ICANN's transparency policy to be done in >>>>>work stream 1. No transparency, no >>>>>accountability. No accountability, no transition. >>>>> >>>>>Best, >>>>> >>>>>Ed >>>>> >>>>> >>>>>- I reproduce here California Corporations Code Â§8333: >>>>> >>>>> >>>>>The accounting books and records and minutes of proceedings >>>>>of the members and the board and committees of the board shall be >>>>>open to inspection upon the written demand on the corporation of any >>>>>member at any reasonable time, for a purpose reasonably related to >>>>>such person's interests as a member. >>>>> >>>>> >>>>>This is the heart of the Inspection right. >>>>>It is so key I'll give it a name: the Anti-FIFA clause. >>>>> >>>>>It is a guarantee the corruption at FIFA will not happen at the new ICANN. >>>>> >>>>>The anti-FIFA clause is the principle reason >>>>>I strongly support the Inspection right. >>>>> >>>>>No virus found in this message. >>>>>Checked by AVG - <http://www.avg.com/>www.avg.com >>>>>Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15 >>>>>Internal Virus Database is out of date. >>>>><ATT00001.c> >>>>_______________________________________________ >>>>Accountability-Cross-Community mailing list >>>><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>>_______________________________________________ >>>Accountability-Cross-Community mailing list >>><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>>https://mm.icann.org/mailman/listinfo/accountability-cross-community > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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