Steve: Thanks for this great summary of transparency aspects in WS1 and WS2. However, in my view, there is one glaring omission, and that is a requirement for greater transparency in Board operations. We live in an age where nearly every operation of government in democratic nations is web-streamed live. And ICANN is committed to transparency. Yet there are no videos or audios of Board meetings, no transcripts, and the minutes provide little in the way of detail regarding how decisions were reached and whether there was any significant dissent by individual Board members. In my personal view, the default for all Board activities should be full transparency, with redaction only for narrowly circumscribed matters. So, may I inquire whether the new COMMITMENT 1 you have noted below would have any effect on Board transparency? Beyond that inquiry, I am not arguing for moving transparency matters into WS1 because of their legal and operational complexity – with one key exception. I would favor WS1 requiring that all Board activities encompassing Accountability matters relating to the IANA transition be fully transparent to the community once a final proposal has been approved by the Chartering Organizations. My reason for that position is that there is at present a yawning gap between the information available to the Board regarding the community’s activities on accountability matters, versus the community’s access to Board consideration of the same subject. The Board has full access to every email and every opinion from CCWG counsel at the moment it is sent, and any member of the Board can participate fully in CCWG discussions and meetings. By way of contrast, the community has no access to internal Board emails regarding accountability, no access to General Counsel and Jones Day legal opinions except on a highly selective and delayed basis, and has no ability to even observe much less participate in Board discussions of accountability. The result of this glaring information asymmetry is a data disconnect that is antithetical to achieving consensus between the CCWG and the Board regarding accountability. The Board sees everything the CCWG is doing in real time, while the CCWG sees nothing of relevant Board activities and information until it chooses to share it. Imagine if the CCWG had equivalent access to Board discussions and legal documents before the LA F2F. Perhaps the decision would have been made not to hold the meeting if the CCWG knew that the Board has determined to never support the SMM. Or perhaps CCWG access to Board discussions and Jones Day analysis on a more timely basis would have fostered a constructive dialogue and facilitated preparations that would have permitted the LA meeting to be far more productive, rather than leaving many CCWG members with the feeling they had walked into an ambush. Let me go even further – not only do I believe that WS1 should require all Board activities encompassing Accountability matters relating to the IANA transition be fully transparent to the community, I would urge the Board to voluntarily begin that practice immediately. What would be the benefits of such a voluntary Board action?: · It would help make up for lost time. It is quite apparent that the fallout from the LA meeting includes adding at least weeks if not months to the CCWG’s process as it strives to determine both the reasons for the Board’s position and what it should do now in reaction to it. CCWG access to Board accountability deliberations in real time would substantially improve the overall efficiency of the accountability process – restricting information g]flows is highly inefficient. · It would demonstrate Board’s commitment to a far higher level of transparency, and its acknowledgement that such transparency is the bedrock foundation of the enhanced accountability that should accompany the transition. · It would help restore trust between the CCWG and the Board, which was substantially bruised in LA. Finally, while I would not advocate open participation in Board accountability discussions to the same extent that Board members can participate in CCWG activities, I would propose consideration of establishment of a CCWG liaison who can do so, as well as report back to the CCWG on the Board’s thinking and concerns. CCWG members seem aligned in thinking that greater transparency is an integral part of enhanced accountability, and much of what the CCWG has proposed relates to greater Board accountability. It seems inconceivable that such accountability can be achieved if the Board persists in its presently opaque mode of operation following the transition. The time to shine light on Board operations is coming, and its accountability deliberations is the place to begin. Let’s be frank. The CCWG and the Board are at an impasse, and if this accountability effort fails it will be seen as a failure of the MSM itself. That is a mortal threat to ICANN’s future and simply unacceptable. Dramatic shifts are required near-term to foster positive progress in Dublin, which is barely two weeks away. I hope that CCWG and Board members find these suggestions to be constructive, because that is the spirit in which they are offered. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Wednesday, September 30, 2015 10:44 PM To: Alan Greenberg; egmorris1@toast.net; Robin Gross; Accountability Cross Community Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem This reply is to help inform today's discussion thread on Transparency. Our 2nd draft report includes the term transparency on 50 different pages. But what really matters is how we add greater transparency into WS1 proposals. See these elements: We propose a new commitment in ICANN Bylaws: COMMITMENT 1. In performing its Mission, ICANN must operate in a manner consistent with its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions, and applicable local law and through open and transparent processes that enable competition and open entry in Internet-related markets. We propose a new element (blue text) for Core Value 2 in ICANN Bylaws: CORE VALUE 2. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent; We require transparency as part of the new Community Forum (para 355 on p.53) We note that CWG-Stewardship requirement for IANA budget transparency in para 378: the CWG-Stewardship Final Proposal has expressed a requirement that the budget be transparent with respect to the IANA Function’s operating costs with clear itemization of such costs to the project level and below as needed. Our new requirement for an annual report on Transparency (para 511-512 on p.74): ICANN will produce an annual report on the state of improvements to Accountability and Transparency. We give all AoC review teams unprecedented access to ICANN internal documents. See Confidential Disclosure policy, para 521 – 527 on p.75. We require each AoC review team to be transparent about the degree of consensus achieved in their report. (para 529 on p.75) And for WS2, there’s this: Transparency: The community has expressed concerns regarding the ICANN document/information access policy and implementation. Free access to relevant information is an essential element of a robust independent review process. We recommend reviewing and enhancing the Documentary Information Disclosure Policy (DIDP) as part of the accountability enhancements in Work Stream 2. (p.43) The subject of SO and AC accountability should be included in the purview of the Accountability and Transparency Review process as part of Work Stream 2 working plan. (p.71) Instituting a culture of transparency within the ICANN organization: (p.121) o Limiting ICANN's ability to deny transparency and disclosure requests. o Enhancing the Ombudsman’s role and function. o Enhancing ICANN’s whistleblower policy. o Increasing transparency about ICANN interactions with governments. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alan Greenberg Date: Wednesday, September 30, 2015 at 8:00 PM To: "egmorris1@toast.net<mailto:egmorris1@toast.net>", Robin Gross, Accountability Cross Community Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem 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" <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Sent: Wednesday, September 30, 2015 8:55 PM To: "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>>, "Accountability Cross Community" <accountability-cross-community@icann.org<mailto:accountability-cross-community@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 202-559-8597/Direct 202-559-8750/Fax 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 <egmorris1@toast.net<mailto:egmorris1@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/) 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. No virus found in this message. 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