[CCWG-ACCT] Update on Board discussions on the CCWG Update

Tue Nov 24 14:45:58 UTC 2015

I would also add that it is rather late in the game for the Board to seek to
revisit not only the right of inspection but also human rights, designator
powers, dismissal without cause.... All in addition to reigniting the
mission debate late last week.  Even for those areas where I agree with the
Board (e.g. on human rights) the Board’s continued disruption of the process
is unfortunate 
.

Paul

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From: Steve DelBianco [mailto:sdelbianco at netchoice.org] 
Sent: Tuesday, November 24, 2015 8:57 AM
To: Bruce Tonkin <bruce.tonkin at melbourneit.com.au>; egmorris1 at toast.net;
Accountability Cross Community <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update

Well said, Ed. 

_____________________________
From: Edward Morris <egmorris1 at toast.net <mailto:egmorris1 at toast.net> >
Sent: Tuesday, November 24, 2015 8:33 AM
Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
To: Bruce Tonkin <bruce.tonkin at melbourneit.com.au
<mailto:bruce.tonkin at melbourneit.com.au> >, Accountability Cross Community
<accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >

Bruce, 

I find it sad, although expected, that the Board continues to show
intransigence and in some areas an unwillingness to compromise by continuing
to revisit issues many of us in the community have already settled on. As
Milton accurately pointed out,  in response to the community backing away
from our second reference model in response to the Board's rather brutal
attack on it  several patches were taken from the membership model and
applied to the designator approach so we as a collective could move forward.
It was a compromise, a grand bargain if you will, that kept hope for this
transition alive. Now the Board has come back to express "concern" over
those areas of the compromise they never agreed with in the first place. Let
me be clear if that if there is further retrenchment from our second
reference model, an elimination of the patches which allowed people like
myself to give support, however tepid, to the process going forward, an
eroding of the comprise that was developed, this transition should and will
die an unfortunate death. I would suggest that this Board needs to look
forward rather than backwards, stop fighting battles of the past and instead
work with the community to reach solutions on new issues heretofore not
resolved or subject to a compromise agreement. 

It comes as no surprise that the Board, and ICANN corporate generally, has
"concern" over the Inspection right. Those conversant in ICANN history will
recall that ICANN corporate n the early days of this charitable corporation
attempted to deny Board members themselves this right. Litigation ensued.
Now those with the right, the Board, wishes to deny it to others who will
post transition be jointly assuming some of the authority today possessed by
the Board alone. I guess that s a sad commentary on human nature as much as
anything else. 

The Inspection right is nor principally an instrument of transparency,
although it certainly does contribute to same, rather it is an instrument of
fraud prevention. It is the principle means by which this community post
transition will have to investigate and ensure itself and the global
community of internet users that this corporation's finances and governing
Board is acting ethically and with due propriety. It is a guarantee that
ICANN will not morph into the mode another private organisation with public
responsibilities has recently assumed, it is a guarantee that ICANN will not
become another FIFA.  

There have been reform elements within FIFA for many years warning of the
scandalous conduct of leaders of that organisation. Sadly these reformers
could not prove what they knew to be true because the organisation itself
was shrouded in secrecy at the highest levels. Accounting records were held
to be propriety, executive meetings were closed. There were no inspection
rights to members of thos organisation under Swiss law. Without access to
the records it was impossible to bring malfeasors to account short of
government intervention. If we do not grant the community Inspection, the
only recourse to guard against corruption at the Board level, to hold the
Board accountable to maintaining ethical and proper conduct,  would be the
intervention of the Attorney General of the State of California pursuant to
his of her §5250 examination rights under the California Corporations Code.
I thought one of the purposes of the transition was to wean ICANN away from
the oversight of territorially baed governments. By taking away the
communities principle tool, a tool to be used only after the same threshold
other community rights must reach has been met, to investigate suspected
malfeasance the Board's preference would have the opposite result. 

Larry Strickling had an interesting take on this issue during a session on
jurisdiction at the Internet Governance Forum. Starting at approximately the
1:15 mark here:   <http://youtu.be/gHtj4KdmYlc> http://youtu.be/gHtj4KdmYlc
Secretary Strickling extols the virtue of the American and California legal
systems. He mentions the deference courts in these jurisdictions give to
shareholders and members in corporate disputes.  He specifically contrasts
this with the Swiss system, noting that the FIFA scandal happened in
Switzerland are not in the United States of America. Yet by attempting to
pare back those antifraud aspects of the membership model that we have
ported to the new model the Board seems intent on making ICANN's governing
structure more like Switzerland's than like California's. What Secretary
Strickling saw as advantages of American jurisprudence the Board seems to
view as a disadvantage. 

I applaud the stated commitment of the Board to increased transparency.
Reform of the DIDP and other transparency mechanisms are overdue and should
be a principle element of work stream 2 reforms. Yet they are not a
substitute for the Inspection right contained, amongst other places, in
§6333 of the California Corporations Code. Publishing items on a website is
no substitute for access to raw data in times of dispute, crisis or when
fraud or malfeasance is suspected. With regards to financial data I draw an
analogy to our current position regarding legal counsel: the community has
been greatly empowered by it's ability to retain it's own counsel. If we had
to rely upon Jones Day I suspect our position would not at all be
independent from that of the Board's. Professional opinions and competence
may differ. Similarly if financial impropriety is suspected this communities
ability to have it's own independent auditors inspect the corporate books is
essential. As would be in such situations unfettered access to the records
and documents presented at Board meetings. Inspection is an exceptional
right granted the community to ensure the base integrity of the corporation.
It should not be confused with transparency reforms that pertain more to
operational concerns and integrity and are made available to third parties
on a request basis. To confuse the two or to offer one as a substitute for
another is an attempt to create FUD of the highest order. 

I certainly hope the Board reconsiders it's position on Inspection. Equally
I hope the community does not. Without the few plugs ported from membership
the new reference model is certainly not acceptable to me nor, I presume, to
many others inside and outside this community. It's time to move forward,
not time to constantly re-litigate the settled issues of the past. 

Regards, 

Ed Morris  

  _____  

From: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au
<mailto:Bruce.Tonkin at melbourneit.com.au> >
Sent: Tuesday, November 24, 2015 9:53 AM
To: "Accountability Cross Community"
<accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update 

Hello Milton, 

>> it would be impossible to have the information needed to utilize that
enforcement power without enhanced transparency and inspection rights. 

Understood. The Board agrees that additional transparency and reporting is
necessary. What the Board is noting is that the details of what this means
needs to be developed for practical use. 

ICANN already makes many more documents public than is typical for
non-profits. This includes minutes of Board meetings and committee meetings,
quarterly financial reporting, detailed annual operating plans, reporting on
projects etc. 

Where additional information is required by the community - our standard
response should be to make it public - rather than rely on having to come
into an office an inspect some records. 

It is only where a document can't be made public (such as staff salaries) -
then it is necessary to have some sort of process for an independent party
to inspect and confirm that it is consistent with published policies (e.g
the compensation policy). 

Regards, 
Bruce Tonkin 

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