I didn't say it was all of WS2; I said that if we don't trust WS2 to deliver, then we need to bring it all into WS1. Do you think that WS2 is a mirage? And I didn't say that we "just need to get this done." I'm all for targeted addition of 6333 rights, and there are quite a number of other areas in our proposal where we still have open points, and I'm not saying let's just get this done in those areas either. As for being tired and exhausted, that's not my issue, either -- I spent 8 years at a law firm where the average billable hours were over 2800 hours a year, and where the top biller had close to 4000 hours (and he did it in 6 days a week, because he was Jewish and observant). That's exhausting. This is a piece of cake. Regardless, I stand by my position that statutory equivalency aside, the rest of this should stay in WS2. Gerg On Wed, Oct 28, 2015 at 6:06 PM, Schaefer, Brett < Brett.Schaefer@heritage.org> wrote:

Greg,

This is hardly bringing all of WS2 into WS1. I know people are tired, exhausted by this process, but the view that we "just need to get this done" is a recipe for regret later in my opinion.

Brett

________________________________ 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<http://heritage.org/>

On Oct 28, 2015, at 5:51 PM, Greg Shatan <gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>> wrote:

Brett,

The issue of "final authority" in the comparison of member and designator is not monolithic and in many cases not far different under either model.

I think significant changes to DIDP policy and to lobbying disclosure policy, each with numerous subparts with new concepts, and a reach that may go well beyond the stated subject matter (e.g., contacts with all government officials starts to look like law enforcement contact disclosure, which should be a topic unto itself), amounts to a trainload, or at least several boxcars.

I have concerns with process, timing and substance. Frankly, my concerns on substance are probably the most limited (though not insignificant within those limitations). I am more concerned about getting this done, and burying the limited but necessary need for 6333-type disclosure (and perhaps other statutory disclosure, as Rosemary pointed out) in a big multipart package.

I think there is quite a bit of heavy lifting here, and a few radical points. We should give this the breathing room it deserves and save the negotiation and discussion of this for WS2. Or let's just blow up all of WS2 and bring it in to WS1. We should not be too greedy in WS1 -- "Pigs get fat, but hogs get slaughtered."

BTW, I never said I was opposed to it because it was "new." I'm not some sort of accountability Luddite. But it is a significant chunk of work beyond what is necessary now, even in light of the shift in models.

As to your question in your follow-up email, I'm saying that moving the entire subject of transparency into WS1 signals a failure to believe that WS2 is real and can be relied on. If I'm a fool to believe in WS2, then we have bigger issues than where to deal with broad transparency reforms in our workflow.

Greg

On Wed, Oct 28, 2015 at 5:23 PM, Schaefer, Brett < Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> wrote: Greg,

I disagree. The question of where final authority rests is fundamental.

I also disagree with your characterization of this as a trainload of new reforms. It is an important clarification of an existing policy, DIDP, and incorporation of a well established disclosure standard.

This is not heavy lifting or radical. It seems that your sole case for not doing it is that it is "new". It is not. It was sidelined last December on part based on the model we were considering. This would have been a much more live issue absent membership.

Also, designator is new. Should we not consider that either?

Best,

Brett

________________________________ 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<tel:202-608-6097> heritage.org<http://heritage.org><http://heritage.org/>

__________

On Oct 28, 2015, at 4:51 PM, Greg Shatan <gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>>> wrote:

Brett,

I disagree with this as a justification for bringing in a trainload of new transparency demands.

If the Community wants to spill the Board because it is refusing to accept the exercise of a specific reserved power, that is all the justification we need to spill the Board, or as many Board members as needed to successfully exercise the power. There's no need to build a case beyond that.

You are also vastly overstating the "reversal" -- the spill/recall rights are statutorily identical under the Designator model, and the bylaw rights are functionally identical. Only the budget/op plan rights are diminished from an enforcement and "fiduciary duty" perspective.

Finally, the most rapid recourse under EITHER model is to spill the Board. Anybody who thinks that litigation will provide "rapid recourse" hasn't been involved in litigation; under our circumstances, litigation as a form of "rapid recourse" is even more unlikely than for a typical litigant.

Greg

Greg

On Wed, Oct 28, 2015 at 4:12 PM, Schaefer, Brett < Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org><mailto: Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>>> wrote: 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<mailto: gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>>] Sent: Wednesday, October 28, 2015 4:01 PM To: Seun Ojedeji Cc: Schaefer, Brett; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org><mailto: accountability-cross-community@icann.org<mailto: 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:

1. 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 2. 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"

1. It is a right that can only be exercised "for a purpose reasonably related to" the member's interests "as a member." 2. 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. 3. 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 <mailto:seun.ojedeji@gmail.com><mailto:seun.ojedeji@gmail.com<mailto: 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 <mailto:Brett.Schaefer@heritage.org><mailto:Brett.Schaefer@heritage.org <mailto: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<mailto: seun.ojedeji@gmail.com><mailto:seun.ojedeji@gmail.com<mailto: seun.ojedeji@gmail.com>>] Sent: Wednesday, October 28, 2015 2:53 PM To: Schaefer, Brett Cc: James Gannon; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org><mailto: accountability-cross-community@icann.org<mailto: 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<tel:202-608-6097><tel:202-608-6097<tel:202-608-6097>> heritage.org<http://heritage.org><http://heritage.org/> On 28 Oct 2015 19:30, "Schaefer, Brett" <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org><mailto:Brett.Schaefer@heritage.org <mailto: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><mailto: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org>> [mailto: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org><mailto: 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<mailto: accountability-cross-community@icann.org><mailto: accountability-cross-community@icann.org<mailto: 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<tel:202-608-6097><tel:202-608-6097<tel:202-608-6097>> heritage.org<http://heritage.org><http://heritage.org/> On 27 Oct 2015 20:16, "James Gannon" <james@cyberinvasion.net<mailto: james@cyberinvasion.net><mailto:james@cyberinvasion.net<mailto: 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

________________________________ 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<tel:202-608-6097><tel:202-608-6097<tel:202-608-6097>> heritage.org<http://heritage.org><http://heritage.org/> From: <accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org><mailto: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org>>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Date: Tuesday 27 October 2015 at 7:09 p.m. To: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org><mailto: robin@ipjustice.org<mailto:robin@ipjustice.org>>> Cc: CCWG-Accountability Community < accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org><mailto: accountability-cross-community@icann.org<mailto: 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<mailto: robin@ipjustice.org><mailto:robin@ipjustice.org<mailto: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... < 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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