-- Paul Sent from myMail app for Android -------- Forwarded message -------- From: "Schaefer, Brett" < Brett.Schaefer@heritage.org> Cc: farzaneh badii < farzaneh.badii@gmail.com> , Tamir Israel < tisrael@cippic.ca> , Padmini < pdmnbaruah@gmail.com> , Edward Morris < egmorris1@toast.net> , Robin Gross << a href="mailto:< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org ">< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org> , Jyoti < jyoti@cis-india.org> , Pranesh Prakash < pranesh@cis-india.org> , "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> , "< a href="mailto: kdrazek@verisign.com "> kdrazek@verisign.com " << a href="mailto: kdrazek@verisign.com "> kdrazek@verisign.com> , Becky Burr < becky.burr@neustar.biz> , "< a href="mailto: jordan@internetnz.net.nz "> jordan@internetnz.net.nz " << a href="mailto: jordan@internetnz.net.nz "> jordan@internetnz.net.nz> , James Gannon < james@cyberinvasion.net> , "Wilson, Christopher" < cwilson@21cf.com> , "Matthew Shears (< a href="mailto: mshears@cdt.org "> mshears@cdt.org )" << a href="mailto: mshears@cdt.org "> mshears@cdt.org> , "Lane, Rick" < RLane@21cf.com> , Michael Karanicolas < michael@law-democracy.org> , "Karel Douglas" < douglaskarel@gmail.com> , "Robin Gross (< a href="mailto:< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org ">< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org )" << a href="mailto:< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org ">< a href="mailto: robin@ipjustice.org "> robin@ipjustice.org> Date: Wednesday, 28 October 2015, 04:13PM -04:00 Subject: FW: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
Sorry, I really need to get posting privileges. See exchange below. From: Schaefer, Brett Sent: Wednesday, October 28, 2015 4:12 PM To: 'Greg Shatan'; Seun Ojedeji Cc: accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG Greg, I agree on the specifics of the right of inspection, but I think you are overlooking the broader enforcement issue. Under the membership model, final authority for various power resided in the member, not the Board. The designator reverses that authority – the power now remains with the Board, not the designator. Under the designator, as we heard repeatedly last week, the most rapid means of recourse is to spill the Board or remove a director. To do that in a responsible way, you need justification. That requires more robust access to information, ICANN documents, etc. to build a case. In my mind, greater transparency is instrumental if the designator is to avail itself of its far more limited power. Best, Brett From: Greg Shatan [ mailto:gregshatanipc@gmail.com ] Sent: Wednesday, October 28, 2015 4:01 PM To: Seun Ojedeji Cc: Schaefer, Brett; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG There seems to be an attempt at severe "mission creep" (or in this case, "mission leap") taking place here. When we moved from "member" to "designator" as our reference model, we gave up the statutory right of inspection under Section 6333 of the California Corporations Code. In order to bridge the gap between "member" and "designator," we discussed trying to give the Sole Designator essentially the same rights that the Sole Member would have had under Section 6333. The member's rights under 6333 are actually quite limited. This was not intended to move all transparency issues from WS2 to WS1. Yet it seems that there's a move by a "small subgroup" to try and take this narrow opening and wedge an entire transparency wishlist into Work Stream 1. This urge to overreach should be resisted by the CCWG, and even by the small subgroup. Section 6333 reads as follows: 6333. 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. We should strive to give the Designator similar rights in WS1 and nothing more . Widespread transparency "reforms" are well beyond the scope of WS1 or the time we have on our timeline to debate and consider each of the various proposals embodied in the small subgroup's document. Rather than using that document as a starting point, I suggest we park that document for use in WS2, and use Section 6333 as our starting point. Key points of Section 6333: * It is a right exercised only by a member. In our prior model, it would have been a right exercised only by the Sole Member. Now, it should be a right exercised only by the Sole Designator * It is limited to particular types of materials: * "accounting books and records" * "minutes of proceedings of the members" * "minutes of proceedings of ... the board" * "minutes of proceedings of ... committees of the board" * It is a right that can only be exercised "for a purpose reasonably related to" the member's interests "as a member." * It requires the member to activate the right by making a "written demand on the corporation" to initiate the right; the corporation is not obligated under 6333 to disclose anything on its own initiative or due to its mere existence as a corporation. * It is a right to "inspection." Terms like "accounting books and records" and "open to inspection," among others, have fairly specific legal meanings in the context of 6333. Our counsel can enlighten us on the specifics, but it is important to be aware that these are limited terms. Our job should be to translate 6333 into the Bylaws as faithfully as possible. No more, no less. I hesitate to suggest any flexibility, lest there be another attempt to pass a camel through the eye of a needle. A final note -- Section 6336 provides a specific enforcement right if a corporation refuses a "lawful demand" under Section 6333. This should also be imported into the Bylaws. Greg On Wed, Oct 28, 2015 at 3:24 PM, Seun Ojedeji < seun.ojedeji@gmail.com > wrote: Hello Brett, I think we may be talking pass each other here. What is currently being done in relation to transparency is a NEW issue under WS1 i.e things required for stewardship transition to happen. I don't agree to the rationale that need for transparency is largely dependent on what model is decided upon. Transparency is an act that should always be encouraged (within the mission of an organisation) and its a continuous effort as much as it's a very tricky topic that needs to be carefully addressed (just like human rights within ICANN). Going members route would not necessarily increase/reduce transparency neither will designator, hence its model independent. So IMO that reason just does not "draw much water". Again a transcript, TOR, and timeline pointers for these new item would be appreciated as I have not found one yet. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 28 Oct 2015 20:03, "Schaefer, Brett" < Brett.Schaefer@heritage.org > wrote: Seun, It is not a new issue, transparency was always on the accountability to do list. It was just not as considered as urgent as other issues because of the powers inherent in the membership model. The recent change in models was the impetus for the change, not a random desire to introduce items at the last minute. If membership had remained the model, in my opinion, I don’t think this would have happened. Best, Brett From: Seun Ojedeji [mailto: seun.ojedeji@gmail.com ] Sent: Wednesday, October 28, 2015 2:53 PM To: Schaefer, Brett Cc: James Gannon; accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG Thanks Brett, I may have missed that particular session where it was decided that additional items be introduced to WS1. A pointer to that transcript will be helpful and it will also be good to know what working party James team is called, their TOR and what their meeting modalities/timelines are. That said, I am concerned that the CCWG is introducing new items at this last minutes of WS1. It makes me wonder what our priorities are. Thanks again for your response. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. ---------------------------------------------------------------------- Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org On 28 Oct 2015 19:30, "Schaefer, Brett" < Brett.Schaefer@heritage.org > wrote: Seun, At the CCWG meetings last week, there was agreement that the move from member to designator (and the lesser powers it would have in many areas, including the right of inspection) should result in transparency concerns being moved from WS2 up to WS1. Best, Brett From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org ] On Behalf Of Seun Ojedeji Sent: Tuesday, October 27, 2015 3:57 PM To: James Gannon Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG Hi James, If I may ask, which of the work stream or working party does this fall? Will be good to know what action item of the CCWG gave birth to this. A pointer will be appreciated. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. ---------------------------------------------------------------------- Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org On 27 Oct 2015 20:16, "James Gannon" < james@cyberinvasion.net > wrote: Hi Greg, A number of NCSG members and others who spoke on this issue in Dublin including myself had started work on this during Dublin and once we had something that was readable we brought it to the group to continue the work. -James From: < accountability-cross-community-bounces@icann.org > on behalf of Greg Shatan < gregshatanipc@gmail.com > Date: Tuesday 27 October 2015 at 7:09 p.m. To: Robin Gross < robin@ipjustice.org > Cc: CCWG-Accountability Community < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG In the interests of transparency, who is in the small subgroup? Thanks! Greg On Tue, Oct 27, 2015 at 3:00 PM, Robin Gross < robin@ipjustice.org > wrote: All: Here is a link to a document intended to contribute to CCWG's work on improving transparency at ICANN: https://docs.google.com/document/d/11sX-zY5uie9s7zNeGz2GIRXk7BBg2xrbN_pplpJn... The doc is the creation of small subgroup of CCWG participants focusing on this transparency issue. Feedback is most welcome! Thanks, Robin
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