[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Nigel Roberts nigel at channelisles.net
Sat Dec 26 12:48:31 UTC 2015


This might be a minority position, but from my perspective, it is, by 
definition, impossible to define the global public interest.

Public interest (except in an academic sense) is defined by what the 
relevant public authority thinks is the public interest. And the 
relevant public authority is a construct of the nation-state.

As a gedankenexperiemnt, perhaps you might just take a moment to agree 
or disagree with the following statements :-

1a. It is in the public interest that LGBT people have the same rights 
and obligations as everyone else, and that anyone seeking to prevent 
this objective should face legal sanctions

1b. It is in the public interest that deviant behaviour, as exhibited by 
LGBT people is severely punished with legal sanctions.


2a. It is in the public interest that anyone be allowed to say anything 
they like, short of saying things which cause actual harm (such as 
falsely shouting 'fire' in a crowded theatre).

2b. It is in the public interest in a democratic society that there be 
some restrictions on what you can say or publish, particularly where the 
speech or publication argues in favour of e use of non-democratic or 
violent means to overthrow the constitutional order, or is said by 
certain organisations which have committed to such non-democratic overthrow.

In some nations, 1b is the correct definition of the public interest, 
while 1a is anathema.

In some nations 2a is the correct definition of the public interest, 
whilst in a number of Western nations, that is 2b.

(You can imagine I have particular countries in mind in the examples 
above, but it's not necessary to name them)

HOWEVER Regardless of the view of your society takes is of the above 
dichotomies, it is submitted that is the clearest possible example that 
a 'global public interest' will remain unsusceptible to definition, and 
any attempt to do so, is doomed to failure.



Nigel






On 26/12/15 11:46, Edward Morris wrote:
 > Hello Bruce,
 > Thanks for this summary of the Board's concerns regarding Inspection
 > rights, a restatement of the view offered by the Board in it's 14
 > December 2015 public response to the CCWG work stream one Proposal
 > of  30 November 2015.
 > Upon reading it would appear to me that this Board response did not take
 > into account in it's comment the 10 December 2015 memo concerning
 > Inspection proffered by the CCWG independent counsel (copy attached).
 > I'm very supportive of and excited about the general  way forward
 > proposed by Counsel, notwithstanding that there are still several
 > options for the community to consider within the context of the 
memorandum.
 > Am I correct in my supposition that the contents of the aforementioned
 > memo were not considered during the Board's deliberation on Inspection
 > that resulted in the position taken and published in the Board's 14
 > December 2015 public comment?
 > Kind Regards,
 > Edward Morris
 > ------------------------------------------------------------------------
 > *From*: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
 > *Sent*: Thursday, December 24, 2015 11:27 AM
 > *To*: "Accountability Cross Community"
 > <accountability-cross-community at icann.org>
 > *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third
 > CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations
 > Hello James,
 >
 >
 >>> With respect Bruce that is a total misleading description of the 
transparency proposals that are in the CCWG’s 3rd Draft, the 
requirements that the CCWG have identified are based entirely on the 
existing California corporations code that hundreds if not thousands of 
non-profits both smaller and larger than ICANN adhere to on a daily 
basis without having a large staffing contingent to support that 
requirement.
 >
 > I don’t believe I provided a description of the transparency proposal in
 > the CCWG 3rd draft. I was responding to the general allegation that the
 > Board did not support transparency.
 >
 > Our formal written feedback was provided in the context of the
 > California corporations code. The law relating to access to records is
 > quite brief, we have provided concrete processes implementing this power
 > on the context of ICANN. We expect the processes set out in the bylaws
 > will ultimately be adjudicated by the IRP process - and not a California
 > court - so more detail on the processes is needed.
 >
 > We have actually gone beyond the bare minimum requirements in the
 > corporations code - which relate to minutes of meetings and accounting
 > records. We already provide much of that information publicly - so there
 > is no need to visit the office and review minutes for example. We also
 > provide quarterly financial reports. Accounting records on their own
 > provide information on income received and suppliers paid. It doesn't
 > always give you context.
 >
 >
 > We stated:
 >
 > The Board supports a well-defined right of inspection of accounting
 > records and minutes of meetings in support of the community powers.
 >
 > The Board proposes that the inspection right be framed in the Bylaws as
 > follows: The community will have a right to seek accounting records and
 > minutes of meetings that are related to the exercise of the Community
 > Powers. To obtain records, the community should have a minimum of two
 > SOs/ACs seeking a Community Forum on the topic, and no fewer than three
 > SOs/ACs supporting a request for the records. The Sole Designator should
 > have the power to enforce ICANN’s failure to abide by the records
 > request, following an escalation path (as appropriate) of
 > reconsideration, Ombudsman and ultimately IRP; the right to the records
 > rests in the Empowered Community.
 >
 > This formation achieves a few objectives. First, similar to the use of
 > inspection rights in the membership structure, this gives the community
 > special access to records that are tethered to the powers that the
 > community holds. Second, it reinforces the Empowered Community as having
 > interests in the records, as opposed to making the Sole Designator as a
 > separate power structure within ICANN. Third, because the inspection
 > rights are tethered to the community powers, the Sole Designator is not
 > being asked to take on inspection or investigatory powers that are
 > beyond its enforcement role. With these limitations, the Board would
 > support the inclusion of inspection rights in the Fundamental Bylaws.
 >
 > New Commitment to Investigations
 >
 > Separately, the Board understands that there could be areas where the
 > community might wish to have additional power in requiring – and having
 > transparency into – investigations of potential fraud or financial
 > mismanagement in ICANN. To address these concerns, the Board supports
 > the development of the following inspection or audit process: Upon three
 > SOs/ACs coming together to identify a perceived issue with fraud or
 > mismanagement of ICANN resources, ICANN will retain a third-party,
 > independent firm (acceptable to the SOs/ACs that have identified the
 > issue) to undertake a specified audit to investigate that issue. The
 > audit report will be made public, and the ICANN Board will be required
 > to consider the recommendations and findings of that report. The
 > investigatory process should first be developed outside of the ICANN
 > Bylaws, and can be incorporated into the Bylaws when appropriate.
 >
 > Allowing for the right to access specific documents related to the
 > community powers, as well as a new ability to trigger third-party
 > investigations, addresses the community concerns of greater access to
 > documents and additional accountability in operations. These two
 > companion processes provide a clear line between information that is
 > appropriate for general public release (transparency), and information
 > that may be confidential or proprietary but necessary to review if there
 > are concerns raised about management practices.
 >
 >
 > Regards,
 > Bruce Tonkin
 >
 >
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 >
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