[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
Alan Greenberg
alan.greenberg at mcgill.ca
Thu Oct 1 01:57:44 UTC 2015
I didn't say that is how it is happening, I said
that was what the CCWG was planning.
Alan
At 30/09/2015 08:50 PM, Greg Shatan wrote:
>Given Larry Strickling's statement about the
>readiness of our report, "final adjustments" is
>probably an understatement. The overall
>framework may only need final adjustments, but
>we have some significant gaps to fill and a
>communications approach that may need a significant re-think.
>
>Greg
>
>On Wed, Sep 30, 2015 at 8:00 PM, Alan Greenberg
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>Ed, I didn't ask why we had not ever discussed
>it, but rather why we are now saying it had to
>be included in the current proposal. I was a
>member of the ATRT2 and am more than painfully
>aware how ineffective the DIDP is, and I have
>LONG campaigned for more transparency and availability of internal documents.
>
>The CCWG process is somewhat stalled due to the
>reaction of the Board to our draft proposal, but
>it was the draft that the CCWG was planning to
>make some final adjustments to and submit as
>final. The transparency and access issues were
>not mentioned. I believe that it is a WS2 issue
>and discussing it now will do nothing but
>obfuscate the real issues that we need to address.
>
>Alan
>
>
>At 30/09/2015 06:59 PM, Edward Morris wrote:
>>HI Alan,
>>
>>I've raised this issue intermittently
>>throughout our work. In Istanbul, Steve
>>DelBianco kindly called upon me to talk about
>>the failings of the DIDP to highlight the
>>problem. In Buenos Aires, I raised the issue
>>again and Thomas suggested towards the end of
>>the meeting that perhaps we could move some
>>transparency reform to work stream 1. Nothing became of that.
>>
>>This is not something we want to do in a rushed
>>manner. Although simplistic on the face, much
>>of what we need to do here is quite technical,
>>involves state specific statutes (privacy, for
>>example) and needs to be done carefully with
>>the community working closely with ICANN staff,
>>even in areas we may have some differences, in
>>order to achieve an optimal outcome. I was
>>quite happy with the status quo reference model
>>whereby the community would have access in
>>extraordinary situations to the most important
>>documentation fairly soon through WS!
>>(inspection rights via membership) while the
>>more comprehensive and structural reforms would
>>be developed in WS2. Now that we're faced with
>>apparently serious proposals to eliminate both
>>WS 2 (Board proposal) and membership,
>>consideration needs to be given to other ways
>>to tackle transparency within the CCWG effort.
>>
>>I should let people know that I've been working
>>with Farzaneh Badii and Sarah Clayton on an
>>analysis of all DIDP requests and responses.
>>We're looking not only at quantifying things
>>like success rates and DCND (defined conditions
>>of nondisclosure) rejection rates but are also
>>attempting to evaluate whether concerns that
>>have been expressed to me privately by multiple
>>Board members (for example, improper use of the
>>DIDP by litigants in legal actions against
>>ICANN as a substitution for / replacement of
>>permissible discovery) are valid. The project
>>is well underway and we hope to be able to
>>present the results to everyone prior to our Dublin meeting.
>>
>>Best,
>>
>>Ed Morris
>>
>>
>>----------
>>From: "Alan Greenberg"
>><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca>
>>Sent: Wednesday, September 30, 2015 8:55 PM
>>To: "Robin Gross"
>><<mailto:robin at ipjustice.org>robin at ipjustice.org>,
>>"Accountability Cross Community"
>><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>>Subject: Re: [CCWG-ACCT] A way to avoid the
>>'The Single Member Can Do Anything!' problem
>>
>>How is it that this was not on our original list of requirements?
>>
>>Alan
>>
>>At 30/09/2015 03:08 PM, Robin Gross wrote:
>>>Agree 100%. We would be sorely amiss in our
>>>duty to enhance ICANN's accountability if we
>>>did not address the concerns about transparency in decision making at ICANN.
>>>
>>>Robin
>>>
>>>
>>>On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote:
>>>
>>>>Transparency of Board meetings and
>>>>deliberations is long overdue and sorely
>>>>needed. It should be the rule with very narrow exceptions.
>>>>
>>>>Sunlight is the best disinfectant.
>>>>
>>>>Philip S. Corwin, Founding Principal
>>>>Virtualaw LLC
>>>>1155 F Street, NW
>>>>Suite 1050
>>>>Washington, DC 20004
>>>><tel:202-559-8597>202-559-8597/Direct
>>>><tel:202-559-8750>202-559-8750/Fax
>>>><tel:202-255-6172>202-255-6172/Cell
>>>>
>>>>Twitter: @VLawDC
>>>>
>>>>"Luck is the residue of design" -- Branch Rickey
>>>>
>>>>Sent from my iPad
>>>>
>>>>On Sep 29, 2015, at 10:24 PM, Edward Morris
>>>><<mailto:egmorris1 at toast.net>egmorris1 at toast.net> wrote:
>>>>
>>>>>Hi Jordan,
>>>>>
>>>>>I appreciate the spirit in which this thread is intended.
>>>>>
>>>>>
>>>>>--That is, aside from the five community
>>>>>powers and the ability to enforce the bylaws
>>>>>against the Board, the other powers the
>>>>>California law grants to member/s (document
>>>>>inspection, dissolve the company, etc),
>>>>>should face such high thresholds to action
>>>>>that they can, practically speaking, never be actioned at all.
>>>>>So how to resolve this? The CCWG's choice of
>>>>>a Single Member (following its earlier
>>>>>choice of multiple members) was to meet the
>>>>>accountability requirements the community
>>>>>has asked for. But nobody asked for the community to have these other powers.
>>>>>
>>>>>
>>>>>I disagree with this premise with regards
>>>>>the inspection right. I've certainly made
>>>>>that a central component of what I've tried
>>>>>to accomplish here. Kieren has been a strong
>>>>>advocate, as well, calling it a "red line";
>>>>>
>>>>>---
>>>>>
>>>>>On 07/08/2015 11:37 PM, Kieren McCarthy wrote:
>>>>>A quick view specifically on "rights of inspection".
>>>>>I think enabling that some entity gets this right would be one of the
>>>>>most useful of all possible accountability improvements.
>>>>>It would - perhaps over time - pull out any motivations that might exist
>>>>>for ICANN to be misleading or less than truthful in its reporting. This
>>>>>is going to be especially important as ICANN receives increasingly large
>>>>>amounts of revenue and particularly given its current weak financial
>>>>>controls.
>>>>>(See:
>>>>><http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/>http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
>>>>>I predict that ICANN corporate will fight hard to prevent any entity
>>>>>from gaining this right. And that it will continue to fight hard even
>>>>>when someone has that right. That in itself should be a good indicator
>>>>>for why it should be a redline for the accountability group.
>>>>>To my mind, not allowing ICANN to hide information is the epitome of
>>>>>actual accountability. If you can't hide it, then to save on
>>>>>embarrassment you consider how best to share
>>>>>it. Over time, everyone gains.
>>>>>
>>>>>Kieren
>>>>>
>>>>>-----
>>>>>I agree with Kieren. One of the reasons I've
>>>>>been content with putting transparency in
>>>>>work stream 2 is I've known the Inspection
>>>>>right came with membership in work stream 1.
>>>>>If that is to be excised then we need to do
>>>>>transparency in work stream 1. You can not
>>>>>have accountability without transparency.
>>>>>I've been involved in reconsideration
>>>>>requests where we have fought and lost in
>>>>>our attempts to get documents from ICANN
>>>>>that would have allowed us to have a chance
>>>>>of winning either the reconsideration or the
>>>>>IRP that would conceivably follow. Without
>>>>>access to documents many of the reforms
>>>>>we're proposing will be of minimal value to
>>>>>litigants. Of course, I await the specifics
>>>>>of the discovery mechanisms that will
>>>>>accompany the IRP and reconsideration reforms.
>>>>>
>>>>>I've watched as many "fears" of the legally
>>>>>uneducated became "truths" when repeated
>>>>>enough. I saw the concept of the derivative
>>>>>lawsuit, a power that should be welcomed by
>>>>>anyone interested in true accountability, so
>>>>>misconstrued and tangled CCWG members and
>>>>>participants acted out of fear this legal
>>>>>right could be used on a regular basis for
>>>>>anything, rather than what it is: a remedy
>>>>>designed for use in extreme situations as
>>>>>protection against double dealing and other types of corporate malfeasance.
>>>>>
>>>>>Rather than try to explain Inspection beyond
>>>>>what Kiernen has done above let me ask this:
>>>>>1. Why don't we want the right of Inspection
>>>>>(aka in ICANN circles as the Auerbach
>>>>>rights)? 2. If we have them why do we want
>>>>>to create high thresholds for the use of
>>>>>those powers? Tell me how these two
>>>>>positions strengthen ICANN's accountability
>>>>>to a greater degree than inspection rights with low thresholds.
>>>>>
>>>>>And, perhaps most of all, where has the
>>>>>discussion occurred leading one and all to
>>>>>believe that we don't want these rights?
>>>>>Point to the thread, the legal advice etc.
>>>>>I've seen the big FUD over derivative
>>>>>rights. Where is something similar, or
>>>>>honest rejection of Inspection rights? Don't
>>>>>assume these are not important issues to
>>>>>some of us merely because we haven't been
>>>>>discussing them. They were in all of the
>>>>>proposals that have gone out for
>>>>>public comment. There is little need to
>>>>>fight for something you already have. I'm
>>>>>looking forward to receiving an analysis of
>>>>>the public comments to see this outpouring
>>>>>of opposition to the inspection rights. It
>>>>>must be there because I'm hard pressed to
>>>>>find extensive opposition anywhere else.
>>>>>
>>>>>Do we need these rights? Well, if we are
>>>>>going to dump them we need a complete revamp
>>>>>of ICANN's transparency policy to be done in
>>>>>work stream 1. No transparency, no
>>>>>accountability. No accountability, no transition.
>>>>>
>>>>>Best,
>>>>>
>>>>>Ed
>>>>>
>>>>>
>>>>>- I reproduce here California Corporations Code §8333:
>>>>>
>>>>>
>>>>>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.
>>>>>
>>>>>
>>>>>This is the heart of the Inspection right.
>>>>>It is so key I'll give it a name: the Anti-FIFA clause.
>>>>>
>>>>>It is a guarantee the corruption at FIFA will not happen at the new ICANN.
>>>>>
>>>>>The anti-FIFA clause is the principle reason
>>>>>I strongly support the Inspection right.
>>>>>
>>>>>No virus found in this message.
>>>>>Checked by AVG - <http://www.avg.com/>www.avg.com
>>>>>Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15
>>>>>Internal Virus Database is out of date.
>>>>><ATT00001.c>
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