[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

[Greg Shatan]

Very true, Alan.



On Wed, Sep 30, 2015 at 9:57 PM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

> 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 <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" <alan.greenberg at mcgill.ca >
> Sent: Wednesday, September 30, 2015 8:55 PM
> To: "Robin Gross" <robin at ipjustice.org>, "Accountability Cross Community"
> < 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
> 202-559-8597/Direct
> 202-559-8750/Fax
> 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 <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/)
> 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.
>
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