Hello Paul, I am not convinced, I believe it's processes and abiding by them that determines level of transparency. DIDP is a process(a policy) which can be implemented and made effective irrespective of model. Again because members have statutory rights will in this context not imply that they could mandate board to release information that existing process/policy/contracts does not permit them to do. At best both parties will end up in court to get a last resort. Which could be an unhealthy scenario. That said, don't get me wrong, I am sure not against transparency but I am against the rationale that is presented and I am concerned about whether it can be adequately addressed within the WS1 timeframe. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 28 Oct 2015 20:36, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:

On the contrary Seun, since the membership model carried with it certain inherent statutory transparency rights under law, the change to the designator model necessitates that we revisit whether the transparency that would inhere with the designator model is adequate. When you say that “going members route would not necessarily increase/reduce transparency neither will designator” you are, as a matter of law, incorrect. I perceive the DIDP effort as an attempt to assure by way of process change or bylaw amendment that the designator has adequate transparency equivalent to the member model. If it did not that would be for some a reason to reject the designator

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>

*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Wednesday, October 28, 2015 3:24 PM *To:* Brett Schaefer <Brett.Schaefer@heritage.org> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG

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 AffairsMargaret 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 AffairsMargaret 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... <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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 28 Oct 2015 21:03, "James Gannon" <james@cyberinvasion.net> wrote:

If you would like to discard the work that has been done in good faith

please feel free to, we have a lot of work to get done and those of us who are trying to assist will keep doing so.

SO: With respect that is not an appropriate way to respond points I have also raised in good faith. Everyone contributes to this process one way or the other. It's interests that usually differs. Regards

-James

From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Wednesday 28 October 2015 at 7:52 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>

Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG

Hello Paul,

I am not convinced, I believe it's processes and abiding by them that determines level of transparency. DIDP is a process(a policy) which can be implemented and made effective irrespective of model.

Again because members have statutory rights will in this context not imply that they could mandate board to release information that existing process/policy/contracts does not permit them to do. At best both parties will end up in court to get a last resort. Which could be an unhealthy scenario.

That said, don't get me wrong, I am sure not against transparency but I am against the rationale that is presented and I am concerned about whether it can be adequately addressed within the WS1 timeframe.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 28 Oct 2015 20:36, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:

...

On the contrary Seun, since the membership model carried with it certain

inherent statutory transparency rights under law, the change to the designator model necessitates that we revisit whether the transparency that would inhere with the designator model is adequate. When you say that “going members route would not necessarily increase/reduce transparency neither will designator” you are, as a matter of law, incorrect. I perceive the DIDP effort as an attempt to assure by way of process change or bylaw amendment that the designator has adequate transparency equivalent to the member model. If it did not that would be for some a reason to reject the designator

...

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

Link to my PGP Key

From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Wednesday, October 28, 2015 3:24 PM To: Brett Schaefer <Brett.Schaefer@heritage.org> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG

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.

________________________________

BrettSchaefer 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.

________________________________

BrettSchaefer 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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Moving to a designator model also entails reliance on "spilling the board" as the enforcement mechanism. Therefore, the community is much more dependent upon knowing what is going on with the board decision making process than we were under a membership model. The switch from membership to designator creates the need for enhanced transparency in WS1 due to heightened dependency on transparency in a designator model. Membership had some transparency guarantees and also lack of transparency dependencies compared to designator model, the switch in models can't really happen without transparency improvements in WS1. Thanks, Robin On Oct 28, 2015, at 1:06 PM, Greg Shatan wrote:

Paul,

"Equivalency" to the member rights under Section 6333 is a fair position. That's what I've put forth in my email a few minutes ago.

This Contribution goes far beyond equivalency and should be set aside until WS2.

Greg

On Wed, Oct 28, 2015 at 3:35 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote: On the contrary Seun, since the membership model carried with it certain inherent statutory transparency rights under law, the change to the designator model necessitates that we revisit whether the transparency that would inhere with the designator model is adequate. When you say that “going members route would not necessarily increase/reduce transparency neither will designator” you are, as a matter of law, incorrect. I perceive the DIDP effort as an attempt to assure by way of process change or bylaw amendment that the designator has adequate transparency equivalent to the member model. If it did not that would be for some a reason to reject the designator

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

Link to my PGP Key

From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Wednesday, October 28, 2015 3:24 PM To: Brett Schaefer <Brett.Schaefer@heritage.org>

Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG

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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

One final point on "stream leap." If we try to hustle all of our transparency concerns into WS1, I think that signals that we are giving up on the concept of WS2 and treating it as a "discard pile" rather than "next steps." In spite of the Board's suggestion that we atomize WS2 back into ordinary processes and "continuous improvement," I'm not giving up on WS2 as a real sequel to CCWG WS1. Indeed, for myself (and I assume others), my support for many aspects of WS1 is contingent upon WS2 being real, robust and guaranteed. On Wed, Oct 28, 2015 at 5:10 PM, Edward Morris <egmorris1@toast.net> wrote:

Hi Greg,

I'm not sure how much "mission creep" is involved here as it is "stream leap". I'm sympathetic to Brett and Paul's arguments that switching from designator to membership does change the equation in a way that more transparency immediately would be a desirable goal. I also recognise that we are in a time pressured enviroment and that the most concrete loss that absolutely must be addressed in the switch from membership to designatory models is that of the loss of the statutory right of Inspection.

Although a component of a switch to greater transparency Inspection itself is designed not for general and frequent use but for infrequent and more direct use. It should and I hope will be subject to the graduated model applicable to all of our community powers. At heart, Inspection is as much an anti-fraud provision as it is a transparency provision. If fraud occurs, a risk of any complex organisation with substantial resources, Inspection will let the community gain access to Board records and the accounts in a predetermined, methodological way, helping to preserve the stability of the organisation at a time it likely would be in crisis. There may be other infrequent uses of the Inspection right but in my mind that would be it's principle purpose. That's why I call it the "anti-FIFA" provision. It helps us prevent fraud.

I am in complete agreement with you, Greg, both about the need to faithfully transpose the provisions of §6333 into our Bylaws and as to the ability of our exceptional legal staff to do so. Holly and Rosemary are fantastic and quite knowledgeable about this issue and the specific statutory provision involved. I've been focused on this one aspect of membership since Roelof and I did the initial model schematics last winter. Indeed, I've harassed our fine Chairs and anyone who would listen to me about the need for this provision repeatedly for the past nine months. I thank folks for putting up with me. I wholeheartedly believe that we need to have Inspection to ensure that we as a community and corporate entity will be able to manage any ill winds that may flow our way. There are times when sunshine does expose and help cure problems of many kinds.

Of course, Inspection will just be the start of our effort to make ICANN the world leader in transparency amongst private corporations with public functions. I'm so excited to see the enthusiasm by so many anxious to build upon this start in work stream two. Accountability without transparency is impossible. Transparency alone creates accountability. I know that working together we can create a structure that will be a model for the world in this regard. We start with Inspection and go from there. I look forward to working with everyone in a positive, constructive way going forward.

Best,

Ed

------------------------------ *From*: "Greg Shatan" <gregshatanipc@gmail.com> *Sent*: Wednesday, October 28, 2015 8:03 PM *To*: "Seun Ojedeji" <seun.ojedeji@gmail.com> *Cc*: "accountability-cross-community@icann.org" < 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: 1. "accounting books and records" 2. "minutes of proceedings of the members" 3. "minutes of proceedings of ... the board" 4. "minutes of proceedings of ... committees of the board" 3. It is a right that can only be exercised "for a purpose reasonably related to" the member's interests "as a member." 4. 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. 5. 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... <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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Dear All Dear Bruce thanks for The information.the the first parts , availability of docs, there are too many , qualifiers" reasonable and reasonable. Perhaps should should soften them by moving one of them and insert the time limit such within X days. Ad for the external auditor , in other corporate firms or international organisation the community gas a role in selection of the external auditor the reports which is subject to review by the community and seeking clarification and nay reconsideration and ...,, Kavouss Sent from my iPhone

On 29 Oct 2015, at 13:16, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Greg,

...

...

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.

The minutes are basically published today. The only minutes apparently that are not posted are compensation committee minutes – but even then we could at least note the items discussed without necessarily disclosing some personal information.

With regard to financials– we are already moving towards the same standards as publicly listed companies in the USA. We now provide quarterly financial reporting, and a quarterly call where the community can question the CEO and the CFO on the income and expenditure. It would not be normal to provide people with access to the raw accounting system (in this case Great Plains) – which would include information on payments to all staff etc.

We do use an external auditor to validate our financials and processes once per year.

If there is a community concern about a particular financial matter (e.g concern about whether procurement policies were being followed) – then I think it would be more appropriate if the single legal entity that represents the community powers has the right to appoint an external auditor to validate any particular process or numbers and report back to the community. Audit firms have the appropriate skills to analyse financial accounting records and also have appropriate procedures in place for confidentiality.

I think we should be focussing on improving the processes we already have. I advocated moving to quarterly financial reporting, and I have certainly been a strong advocate of making things as public as possible, and welcome suggestions for improving our processes.

Regards, Bruce Tonkin

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I have to agree with Padmini on this one re: DIDP and being "able to refer the requestor to documents already publicly available". The information provided is often tangential to what has actually been asked for. In quite a few cases it is so far removed from the query that it is almost obnoxious. I don't know why Board members have such a blind spot about how the staff behaves to those outside the corporation. And I'm still waiting to hear a Board member - any Board member - announce that they have decided to look into the staff's bylaw-breaking behavior in the .africa application. If I was on the Board and I heard that the entire process was being jeopardized by staff wrongly interfering in the process (and then lying about doing so), I'd make sure the community knew I was doing my job and insist on some kind of internal review of what happened and what could be done to make sure it didn't happen again. But instead we get silence and fantasy responses like these ones from Bruce about how the DIDP works and the effectiveness of ICANN's financial reporting systems. Kieren On Thu, Oct 29, 2015 at 5:41 AM, Padmini <pdmnbaruah@gmail.com> wrote:

Dear Bruce,

As someone who has spent some time combing through the different responses that ICANN files to the various DIDP requests, my findings are slightly different, and have been posted earlier. While ICANN does link one to an innumerable array of documents that are publicly available, many times, there is little or no connection between the information one seeks and the publicly available documents that are provided. For instance, I have asked a few questions on registrar/registry audits, specifically seeking individual contracted party audit reports in cases where there have been breaches or discrepancies. However, the response contains a large number of links explaining ICANN's three-year-audit process in great detail, and at the end has a rejection of my actual request on the basis of certain of their extremely vast and broad grounds for non-disclosure. I like to refer to this as ICANN's tendency towards *documentary obfuscation *where they aren't actually giving you the information that you need, but are drowning you in documents anyway. That 66 is a figure that we might need to scrutinise closer in terms of how effective those disclosures actually have been.

Warm Regards Padmini Programme Associate, Internet Governance Centre for Internet and Society, Bangalore, India

Padmini Baruah V Year, B.A.LL.B. (Hons.) NLSIU, Bangalore

On Thu, Oct 29, 2015 at 12:16 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

...

Hello Greg,

...

...

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.

The minutes are basically published today. The only minutes apparently that are not posted are compensation committee minutes – but even then we could at least note the items discussed without necessarily disclosing some personal information.

With regard to financials– we are already moving towards the same standards as publicly listed companies in the USA. We now provide quarterly financial reporting, and a quarterly call where the community can question the CEO and the CFO on the income and expenditure. It would not be normal to provide people with access to the raw accounting system (in this case Great Plains) – which would include information on payments to all staff etc.

We do use an external auditor to validate our financials and processes once per year.

If there is a community concern about a particular financial matter (e.g concern about whether procurement policies were being followed) – then I think it would be more appropriate if the single legal entity that represents the community powers has the right to appoint an external auditor to validate any particular process or numbers and report back to the community. Audit firms have the appropriate skills to analyse financial accounting records and also have appropriate procedures in place for confidentiality.

I think we should be focussing on improving the processes we already have. I advocated moving to quarterly financial reporting, and I have certainly been a strong advocate of making things as public as possible, and welcome suggestions for improving our processes.

Regards, Bruce Tonkin

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No. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Friday, 30 October 2015 12:38 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG So, one difference between Member model and Designator is that Members have legal access to the accounting books, and Designators do not. Is that why the Board is so against membership? On 10/29/2015 12:16 PM, Bruce Tonkin wrote:

Hello Greg,

...

...

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.

The minutes are basically published today. The only minutes apparently that are not posted are compensation committee minutes – but even then we could at least note the items discussed without necessarily disclosing some personal information.

With regard to financials– we are already moving towards the same standards as publicly listed companies in the USA. We now provide quarterly financial reporting, and a quarterly call where the community can question the CEO and the CFO on the income and expenditure. It would not be normal to provide people with access to the raw accounting system (in this case Great Plains) – which would include information on payments to all staff etc.

We do use an external auditor to validate our financials and processes once per year.

If there is a community concern about a particular financial matter (e.g concern about whether procurement policies were being followed) – then I think it would be more appropriate if the single legal entity that represents the community powers has the right to appoint an external auditor to validate any particular process or numbers and report back to the community. Audit firms have the appropriate skills to analyse financial accounting records and also have appropriate procedures in place for confidentiality.

I think we should be focussing on improving the processes we already have. I advocated moving to quarterly financial reporting, and I have certainly been a strong advocate of making things as public as possible, and welcome suggestions for improving our processes.

Regards, Bruce Tonkin

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Bruce, My responses in-line below. Greg On Thu, Oct 29, 2015 at 8:16 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Greg,

...

...

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.

The minutes are basically published today. The only minutes apparently that are not posted are compensation committee minutes – but even then we could at least note the items discussed without necessarily disclosing some personal information.

​GSS: That was my understanding as well, but thanks for confirming.​

With regard to financials– we are already moving towards the same standards as publicly listed companies in the USA. We now provide quarterly financial reporting, and a quarterly call where the community can question the CEO and the CFO on the income and expenditure. It would not be normal to provide people with access to the raw accounting system (in this case Great Plains) – which would include information on payments to all staff etc.

​GSS: First, this would be limited to the Single Designator, not "people" generally, at least as I see it. Also, Section 6333 has equivalents for regular business corporations, with the right going to shareholders rather than members; so this is "normal" under California law. There are limitations -- only records reasonably related to the requestor's purpose will be provided, and the purpose needs to have a "credible basis" as I understand it (i.e., it can't be a "fishing expedition"). Also, privacy concerns can be considered -- as such, "payments to all staff" are relatively unlikely to be provided (unless the request survives the hurdles described, with regard to that information). There is some existing interpretation around "accounting books and records" and I would look to our counsel to provide that, if the question is certified to them.​

We do use an external auditor to validate our financials and processes once per year.

If there is a community concern about a particular financial matter (e.g concern about whether procurement policies were being followed) – then I think it would be more appropriate if the single legal entity that represents the community powers has the right to appoint an external auditor to validate any particular process or numbers and report back to the community. Audit firms have the appropriate skills to analyse financial accounting records and also have appropriate procedures in place for confidentiality.

​GSS: As noted above, this right would only be exercised by the single

legal entity, whatever we call it (the "Central Scrutinizer"?). I think it should be an option to appoint an external auditor (at ICANN's expense) or to allow representatives of the Central Scrutinizer to pore over the accounting books and records, or allow a combination. In part it depends on what the issue is. Regardless, there should be appropriate (but not overreaching) confidentiality procedures.​

I think we should be focussing on improving the processes we already have. I advocated moving to quarterly financial reporting, and I have certainly been a strong advocate of making things as public as possible, and welcome suggestions for improving our processes.

​GSS: I don't think these two paths are mutually exclusive. The "inspection" right is intended to "bridge the gap" in one important distinction between member and designator​. That is important in bringing comfort to the community that the Designator is as robust a substitute for the Member as can be. At the same time, I applaud ICANN's improvements in financial reporting and transparency (and thank you for your support in that regard), and expect that they would continue under any circumstances.

Regards, Bruce Tonkin

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The last century wasn't that long ago! "Books and records" is one of those terms that haven't changed, even as its meaning has evolved. The law is like that.... The statute does refer to media other than paper records. Specifically, it refers to records accessed by means of a "cathode ray tube device." :-) On Thursday, October 29, 2015, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Greg,

...

...

There are limitations -- only records reasonably related to the requestor's purpose will be provided, and the purpose needs to have a "credible basis" as I understand it (i.e., it can't be a "fishing expedition"). Also, privacy concerns can be considered -- as such, "payments to all staff" are relatively unlikely to be provided (unless the request survives the hurdles described, with regard to that information). There is some existing interpretation around "accounting books and records" and I would look to our counsel to provide that, if the question is certified to them.​

Yes – that would be really helpful to get some interpretation of what is meant in the statute and how we could develop something appropriate for ICANN in the bylaws.

Even the term accounting books and records sounds like something from the last century. I haven’t seen paper general ledgers, invoice books etc for many years. These days there are electronic accounting systems, and you pull management reports from those systems. The public financials are examples of such reports.

AS noted – where an investigation is justified by the legal entity for the community powers – I would think the most appropriate process is to appoint an independent auditor to investigate the issue for which there is a “credible basis” . An independent auditor is trained in being able to investigate records from accounting systems. Generally the Board would also most likely also be interested to know if there is any issue in the use of the public funds held by ICANN. So the interests of the Board and community should generally be aligned.

Regards, Bruce Tonkin

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