September 2015 - Accountability-Cross-Community

GAO report
by Thomas Rickert Dec. 8, 2015

Dec. 8, 2015

All, The General Accountability Office hast just published its report, which you can find here: http://www.gao.gov/products/GAO-15-642 Best, Thomas --- rickert.net

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Cruz / NTIA: Time to Get Expert Advice
by Edward Morris Oct. 10, 2015

Oct. 10, 2015

Hello everybody, Some of the unknowns facing this group going forward are as much political in nature as they are substantive or procedural. Do we take the opinion and perspective of Senator Ted Cruz seriously? Is it a threat to the transition? Is there something that we can do to be responsive to the genuine concerns of Senator Cruz? Are his concerns genuine? What about the NTIA? The deference shown to Secretary Strickling among some of us here is almost Papal in nature. What did Larry say, how did Larry say it, what did he really mean when he said it but really didn't say it. It's a bit ridiculous. I admire Secretary Strickling. He's a fine civil servant. His published salary, though, is less than that of a first year associate from a decent law school at a mid sized corporate law firm. He is not the all mighty. Commerce and the NTIA are complex places. Larry has absolute control of neither. I've read here today a legal analysis of the Senator's Constitutional challenge by someone I know to be neither an American nor a lawyer. I can click both boxes and I have my views but am I sure I'm right? No. It seems everyone here has an opinion as to what the NTIA will or will not accept from us. Do any of us really know? No. Prior to the Los Angeles meeting it was suggested that we might want to hear from ICANN's lobbyists, that they could explain to us their version of political reality. We properly rejected that offer. I think we've reached the point, though, where we do need to call upon the expertise of some Washington political professionals to help guide us through this part of the process. No more guesswork by amateurs or implied threats by those with some self-interest in the matter. We're talking about who is going to run a vital part of the most powerful communications technology in human history. We need to do this right. Fortunately, we've already retained two such individuals who, if we wish, have the expertise and ability to assist us in this area. Back in the early days of this project when we were all young, innocent and hopeful :) we retained not one but two law firms to help guide us. In retrospect that decision and two firms we chose to hire were amongst the best decisions we've made in this CCWG. I have complete faith in our lawyers and that is a rarity for me. I note that one of the specific reasons we hired Sidley was for their Washington ties and expertise. During our interviews with the firm we were able to meet two of their professionals with the greatest knowledge of DC and government operations : Cam Kerry ( http://www.sidley.com/people/cameron-f-kerry) and Rick Boucher ( http://www.sidley.com/people/rick-boucher ). Both men were extremely impressive. It is time to tap their talents. We need serious advice in these areas from serious professionals. I would respectfully ask our Chairs and the full CCWG to consider inviting either Rick or Cam to Dublin to meet with the CCWG early in the week, preferably during the initial F2F. I think it's important that everyone has a chance to question them. We need this type of policy expertise from a politically astute professional who owes a duty of care to us, no one else, and whose rolodex allows him or her to reach out to those whose decisions will most impact our work. We need to know what political reality is if we are to maximise our potential as a very special and unique group dedicated to helping create a truly open and accountable governance mechanism for this small part of the networked world. Thanks for considering. Best, Ed Morris

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Is it reasonable to avoid new mechanisms?
by Avri Doria Oct. 9, 2015

Oct. 9, 2015

Hi, The Board's critique rests on a notion that the introduction of anything new in the ICANN system will be a destabilizing factor and most be avoided. This ignores the fact that by removing the NTIA backstop we destabilize the current system. It might have been possible to find a new balance (not that the old worked that well given the amount of discontent that existed prior to the CCWG process) by tweaking the system. The early work of the CCWG, however, showed that this was not enough. So we decided to bring back a notion that existed in the early ICANN design, the idea of membership. Membership has always been part of the kit that was available to ICANN in the multistakeholder model. An initial experiment met with some issues and instead of fixing that then, they threw the notion away without exploring possible tweaks to the system. As a result we are living in ICANN 2.0, a system that was imposed in a top down manner and one that was never fully accepted by those at the bottom. Now, albeit in a very different configuration, the CCWG is proposing to establish a community consensus based idea of membership. I believe that this should be given a fair analysis before rejecting it. It is also important to remember that the NTIA requirements were not a prohibition of new mechanisms or structures, but rather evidence that these structure did not increase the current risk, or fact, of capture and that they could be held to account. The Board criticism is important to look at for arguments that show the areas in which the CCWG plan either does not explain its protections against capture and its accountability checks and balances or may have gaps in these areas. If we cannot explain what we propose, or cannot close the gaps, then it becomes time to consider variations on the model or another model altogether. In my opinion, we are not there. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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A way to avoid the 'The Single Member Can Do Anything!' problem
by Jordan Carter Oct. 5, 2015

Oct. 5, 2015

Hi all One of the pieces of feedback from Board members I heard in L.A. was a concern that basically goes like this: "The Single Member is a problematic idea because of the incredible powers it has under California law - for instance, it could even dissolve ICANN!" There were some sub-themes to this concern: - the accountability of SO/AC actors in exercising the powers intended for the CMSM - the absence of fiduciary duties on the Single Member in making its decisions - the engineering principle of minimal change at a time Focusing on the overarching concern, it was a tenet of the CCWG's Second Draft Proposal that the CMSM should be largely ruled out from exercising any of the powers the community didn't propose it had. 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. [The Second Draft Proposal may not have been terribly clear about this, but that's what it was driving at.] 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. *Here is a suggestion.* *For the exercise of any of the Member Powers the CMSM would have (beyond those we "want" it to have), why don't we include the ICANN Board as one of the groups that has to vote / come to consensus to exercise them?* This sounds a little strange on the face of it but think it through. This seems to me to be a very simple way to avoid the problem. It acknowledges that the rights of the Member are set out in law and can't be eroded - that they can only be managed by the decisions that member is able to take. And it acknowledges that the concerns about constraining the possible actions of the member to those that are intended, should be solved. It shares power in the model in quite a nice, dare-I-say-it, "multistakeholder" way. I'd welcome others' thoughts. I'd welcome views from our lawyers about this, too. On the face of it I can't see any reason this wouldn't work in law, since the CMSM can be comprised of any set of ICANN actors. But - I Am Not A Lawyer. cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Lawyers' Meeting on Friday
by Dr Eberhard W Lisse Oct. 4, 2015

Oct. 4, 2015

Dear Co-Chairs, I understand that CCWG's Counsel met with ICANN's Counsel. I have not seen the report/minutes/notes from the meeting. Can you please ask staff to expedite transcription and posting to the list? greetings, el -- Sent from Dr Lisse's iPad mini

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Additional time in Dublin
by Alice Jansen Oct. 1, 2015

Oct. 1, 2015

Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October - 23:59 UTC. Thanks, Best regards Alice

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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] Additional time in Dublin
by James Gannon Sept. 30, 2015

Sept. 30, 2015

My personal preference would be Saturday as I already am triple booked for Friday (Leadership Training, Privacy Proxy PDP Face2Face, and CCWG) and Thursday is very busy, but I am aware this will conflict with some of my GNSO colleagues particularly councillors. I think however having a full day session may give us the best chance of making substantive progress and people may be able to join and leave as other priorities come and go. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen Date: Wednesday 30 September 2015 23:13 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: [CCWG-ACCT] Additional time in Dublin Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October – 23:59 UTC. Thanks, Best regards Alice

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Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
by Alan Greenberg Sept. 30, 2015

Sept. 30, 2015

Well that would surely simplify a model that is being criticized as being to complex. Perhaps we should establish a parallel NomCom as well, to populate 8 of the seats. Of course, we will also need accountability measures to control the parallel board. Alan At 30/09/2015 03:16 PM, Greg Shatan wrote: >We could even go so far as to suggest that the >Single Member have a board that mirrors the ICANN board, seat by seat. > >I would be curious to see the Board's response to that. > >On Wed, Sep 30, 2015 at 3:08 PM, Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org> 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 >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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