[CCWG-ACCT] Transparency recap (Was: Contribution on Transparency Reforms for CCWG)

Mon Nov 2 18:06:13 UTC 2015

Steve,

I appreciate your effort to bridge differences. I assume this would be in addition to granting the right of inspection to the sole designator or the individual SOs and ACs? I think that would have to be the case to call this a patch.

Even so, I think it is fair to say that this mechanism is too limited to meet the concerns that led for people to call for moving transparency forward to WS1.

On the specific process, correct me if I am wrong, but wouldn’t this process:

·         Require SO/AC action to initiate a review team? So a DIDP request by an individual that is denied is final unless they can convince 2 SOs/ACs to propose setting up a Review Team?

·         Relegate a refusal to share documents to the Review Team or to allow disclosure to an appeal of the Board or Ombudsman, which is unlikely to succeed since ICANN (Board or staff) is the source of the denial in the first place.

I do appreciate that there is a potential means for addressing this in the final point – “The confidential disclosure framework must provide a mechanism to escalate and/or appeal the refusal to release documents and information to duly recognized Review Teams” – but it needs to be developed.

That said, in the general discussion, I haven’t seen any real opposition to the call for: (1) granting the right of inspection to the SD or to the individual SOs/ACs; (2) improving the DIDP process; and (3) requiring ICANN to disclose its contacts with government to influence policy and the expenditures for that purpose.

There has been a great deal of concern expressed over the time crunch and whether there is sufficient opportunity to get all of this done under the tight schedule. I think that we could do so if we trimmed down the to do list to a few core items and reserved the remainder for WS2. Specifically, I propose:

·         Granting the right of inspection to the sole designator in as outlined in California Corporations Code §§ 6310-3 and 6330-8.

·         Provide for independent appeal of DIDP decisions either to the IRP or to an independent review panel as outlined in p. 75 in Draft 2 provided that these options are available to individuals and businesses in addition to the sole designator or SOs/ACs.

·         Mandate a review and update of DIDP policies based on CCWG recommendations within 2 years with the goal of justifying denials with a specific harm and limiting the scope of non-disclosure.

·         Require ICANN to compile and publicly post a quarterly report providing: the names of individuals acting on ICANN’s behalf who have been in contact with a government official; the names and titles of such government officials; the date, nature and purpose of those government contacts; and a line item accounting of the amount ICANN spent on government engagement activities.

I think this list would address most of the transparency concerns and be relatively simple to incorporate into the third draft as the most complicated issue – how to specifically alter the DIDP provisions – is pushed to WS2.

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/>
From: Steve DelBianco [mailto:sdelbianco at netchoice.org]
Sent: Friday, October 30, 2015 11:03 AM
To: kdrazek at verisign.com; Alan Greenberg; Schaefer, Brett
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Transparency recap (Was: Contribution on Transparency Reforms for CCWG)

This discussion thread suggests a real need for improved transparency in WS1, while avoiding significant new proposals at this late stage.  Here’s a modest transparency improvement that could easily be done in WS1:

Let’s expand the confidential disclosure policy we designed for AoC Review teams (page 75 of our 2nd draft).   That was drafted with help from ICANN Legal, and has no opposition.

Should be easy to extend that process to a "Transparency Team”.  In keeping with our Dublin decision process, this Transparency Review team could be initiated at any time, upon petition by any 2 AC/SOs.  Transparency Review Team members would be appointed by AC/SO chairs.  Here’s the text from our 2nd draft report, page 75, regarding the AoC Review teams:

Confidential Disclosure to Review Teams:
To facilitate transparency and openness regarding ICANN's deliberations and operations, the Review Teams, or a subset thereof, shall have access to ICANN internal information and documents. If ICANN refuses to reveal documents or information requested by the Review Team, ICANN must provide a justification to the Review Team. If the Review Team is not satisfied with ICANN’s justification, it can appeal to the Ombudsman and/or the ICANN Board for a ruling on the disclosure request.

For documents and information that ICANN does disclose to the Review Team, ICANN may designate certain documents and information as not for disclosure by the Review Team, either in its report or otherwise. If the Review Team is not satisfied with ICANN’s designation of non-disclosable documents or information, it can appeal to the Ombudsman and/or the ICANN Board for a ruling on the non-disclosure designation.

A confidential disclosure framework shall be published by ICANN. The confidential disclosure framework shall describe the process by which documents and information are classified, including a description of the levels of classification that documents or information may be subject to, and the classes of persons who may access such documents and information.

The confidential disclosure framework shall describe the process by which a Review Team may request access to documents and information that are designated as classified or restricted access.

The confidential disclosure framework shall also describe the provisions of any non-disclosure agreement that members of a Review Team may be asked to sign.

The confidential disclosure framework must provide a mechanism to escalate and/or appeal the refusal to release documents and information to duly recognized Review Teams.

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Keith Drazek
Date: Friday, October 30, 2015 at 10:31 AM
To: Alan Greenberg
Cc: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>"
Subject: Re: [CCWG-ACCT] Transparency recap (Was: Contribution on Transparency Reforms for CCWG)

I disagree with Alan. It is not mission creep. If the community is to rely on removal/recall of the Board to enforce powers, the community needs reasonable and predictable visibility into the organization's deliberations and decision-making. This is part of the evolution of our reference model.

I agree with Chris that the right of inspection should be conferred at the SO/AC level, subject to a reasonable consensus threshold.

Regards,
Keith

On Oct 30, 2015, at 10:19 AM, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>> wrote:
Transparency is needed, but the CCWG identified this as a WS2 issue. Yes, when we were talking about membership, some of this automatically would be provided, but it was not de facto a WS1 issue. To add it now is mission creap.
--
Sent from my mobile. Please excuse brevity and typos.
On October 30, 2015 11:34:29 AM GMT+00:00, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
I disagree. I do not believe there is yet consensus.

I am not in favour of any ‘rights’ other than the enforcement rights already agreed being given to the designator. I have no issue with the right of inspection being given to the SOs and ACs pursuant to an agreed level of consensus.

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

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On 30 Oct 2015, at 22:25 , Schaefer, Brett <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>> wrote:

Matthieu,

I may be wrong, but based on the comments on the list and in Dublin that there is broad agreement, I would even say consensus, that the right to inspect needs to be granted to the designator.

The discussion recently has focused on how much of the other transparency provisions to bring forward to WS1. I and others think a substantial amount, others disagree. If a compromise or centrist position is being sought, I suggest it that it focus on these items of dispute.

Thanks,

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
http://heritage.org<http://heritage.org/>

On Oct 30, 2015, at 5:24 AM, Edward Morris <egmorris1 at toast.net<mailto:egmorris1 at toast.net><mailto:egmorris1 at toast.net>> wrote:

Mathieu,

Thank you very much for this post. I  want to succinctly thank the Chairs for their exemplary leadership on this issue, express my support for their rational, considered, centered and measur ed approach to transparency and inspection issues, and express my full support for the approach indicated, with work beyond the transposing of certain provisions from the old reference model into into the new reference model to be tackled in work stream 2. It is an approach between the two extremes recently debated on list and as a centrist in most things in life find it a reasonable way forward that should provide us with the best opportunity to get this done right. Thanks again.

Best,

Ed Morris

Sent from my iPhone

On Oct 30, 2015, at 8:15 AM, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr><mailto:mathieu.weill at afnic.fr>> wrote:

Dear Colleagues,

First of all many thanks to all of you wh o have been working hard on this issue. We are well aware of your efforts to find an approach that would be acceptable to all on this question.

Regarding transparency discussions, I would like to remind everyone of the content and conclusions of our discussions on Transparency in the Sole Designator model while we were in Dublin.

-          Our lawyers have confirmed that the same level of transparency could be achieved in the Sole Designator model as with the Sole Member, by adding a specific provision to the Bylaws enabling the Sole Designator to inspect Ican’s accounting books and records.

-          In response to a concern raised by Sam Eisner about public disclosure of such documents, we discussed how we could use the same type of provision that we had agreed on for the AoC reviews as a safeguard (see below the relevant extract from the AoC section, provided by Steve del Bianco)

-          There was a debate about whether or not extra provisions for transparency were needed in Work stream 1, considering that we have agreement that the topic is on the WS2 agenda. There was no formal conclusion.

Thomas did conclude by saying “So that’s one action item for our group to set up a subteam to define the exact language and extent to which a transparency is required.”

In terms of way forward, given the input we have received, I believe the question is whether transparency provisions, beyond the records inspection rights, fit with our agreed definition of Work stream 1, and whether the level of consensus on the extra provisions at this stage is sufficient.

I would note that, with the group’s input, our WS2 initiative would already be well advanced. It might be possible to launch it very soon after we have submitted our WS1 recommendations if that is the path we take.

Best,
Mathieu

For your reference :
Full transcript --> https://community.icann.org/download/attachments/56143884/Transcript%20CCWG%20ACCT%20Working%20Session%202_21%20October.pdf?version=1&modificationDate=1445525810000&api=v2
Slide-deck --> https://community.icann.org/download/attachments/56143884/CCWG-Accountability%20Working%20Session%20II%20%281%29-1.pdf?version=1&modificationDate=1445444965000&api=v2

page 75 of AoC reviews as part of WS1.
Confidential Disclosure to Review Teams:
To facilitate transparency and openness regarding ICANN's deliberations and operations, the Review Teams, or a subset thereof, shall have access to ICANN internal information and documents. If ICANN refuses to reveal documents or information requested by the Review Team, ICANN must provide a justification to the Review Team. If the Review Team is not satisfied with ICANN’s justification, it can appeal to the Ombudsman and/or the ICANN Board for a ruling on the disclosure request.

For documents and information that ICANN does disclose to the Review Team, ICANN may designate certain documents and information as not for disclosur e by the Review Team, either in its report or otherwise. If the Review Team is not satisfied with ICANN’s designation of non-disclosable documents or information, it can appeal to the Ombudsman and/or the ICANN Board for a ruling on the non-disclosure designation.

A confidential disclosure framework shall be published by ICANN. The confidential disclosure framework shall describe the process by which documents and information are classified, including a description of the levels of classification that documents or information may be subject to, and the classes of persons who may access such documents and information.

The confidential disclosure framework shall describe the process by which a Review Team may request access to documents and information that are designated as classified or restricted access.

The confidential disclosure framework shall also describe the provisions of any non-discl osure agreement that members of a Review Team may be asked to sign.

The confidential disclosure framework must provide a mechanism to escalate and/or appeal the refusal to release documents and information to duly recognized Review Teams.

De : accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org><mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] De la part de Kieren McCarthy
Envoyé : jeudi 29 octobre 2015 15:58
À : Padmini
Cc : accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org><mailto:accountability-cross-community at icann.org>
Objet : Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG

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 th e 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 at gmail.com<mailto:pdmnbaruah at gmail.com><mailto:pdmnbaruah at 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 at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au><mailto:Bruce.Tonkin at 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 dem and 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 ex ternal 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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