[CCWG-ACCT] Board Transparency on Accountability Now ----RE: A way to avoid the 'The Single Member Can Do Anything!' problem

Sun Oct 4 13:44:15 UTC 2015

Dear All,
I also support Phil and Robin in increasing transparency, we  should review
the existing working menthod of Board and the dissemination of information.
Webcasting ( video and /or Audio 9 are among those issues to be considered
for transparencies among other possibler ways
Kavouss

2015-10-03 17:21 GMT+02:00 Robin Gross <robin at ipjustice.org>:

> I support Phil's proposal to increase transparency of board decision
> making in these accountability reforms.  It would be a terrible oversight
> if we did not.
>
> Thanks,
> Robin
>
>
> On Oct 1, 2015, at 5:43 PM, Phil Corwin wrote:
>
> Steve:
>
> Thanks for this great summary of transparency aspects in WS1 and WS2.
>
> *However, in my view, there is one glaring omission, and that is a
> requirement for greater transparency in  Board operations.*
>
> We live in an age where nearly every operation of government in democratic
> nations is web-streamed live. And ICANN is committed to transparency. Yet
> there are no videos or audios of Board meetings, no transcripts, and the
> minutes provide little in the way of detail regarding how decisions were
> reached and whether there was any significant dissent by individual Board
> members.
>
> In my personal view, the default for all Board activities should be full
> transparency, with redaction only for narrowly circumscribed matters. *So,
> may I inquire whether the new COMMITMENT 1 you have noted below would have
> any effect on Board transparency?*
>
> Beyond that inquiry, I am *not* arguing for moving transparency matters
> into WS1 because of their legal and operational complexity – with one key
> exception.
>
> *I would favor WS1 requiring that all Board activities encompassing
> Accountability matters relating to the IANA transition be fully transparent
> to the community once a final proposal has been approved by the Chartering
> Organizations.*
>
> My reason for that position is that there is at present a yawning gap
> between the information available to the Board regarding the community’s
> activities on accountability matters, versus the community’s access to
> Board consideration of the same subject.
>
> The Board has full access to every email and every opinion from CCWG
> counsel at the moment it is sent, and any member of the Board can
> participate fully in CCWG discussions and meetings.
>
> By way of contrast, the community has no access to internal Board emails
> regarding accountability, no access to General Counsel and Jones Day legal
> opinions except on a highly selective and delayed basis, and has no ability
> to even observe much less participate in Board discussions of
> accountability.
>
> *The result of this glaring information asymmetry is a data disconnect
> that is antithetical to achieving consensus between the CCWG and the Board
> regarding accountability.* The Board sees everything the CCWG is doing in
> real time, while the CCWG sees nothing of relevant Board activities and
> information until it chooses to share it.
>
> Imagine if the CCWG had equivalent access to Board discussions and legal
> documents  before the LA F2F. Perhaps the decision would have been made not
> to hold the meeting if the CCWG knew that the Board has determined to never
> support the SMM. Or perhaps CCWG access to Board discussions and Jones Day
> analysis on a more timely basis would have fostered a constructive dialogue
> and facilitated preparations that would have permitted the LA meeting to be
> far more productive, rather than leaving many CCWG members with the feeling
> they had walked into an ambush.
>
> *Let me go even further – not only do I believe that WS1 should require
> all Board activities encompassing Accountability matters relating to the
> IANA transition be fully transparent to the community, I would urge the
> Board to voluntarily begin that practice immediately.*
>
> What would be the benefits of such a voluntary Board action?:
> ·         It would help make up for lost time. It is quite apparent that
> the fallout from the LA meeting includes adding at least weeks if not
> months to the CCWG’s process as it strives to determine both the reasons
> for the Board’s position and what it should do now in reaction to it. CCWG
> access to Board accountability deliberations in real time  would
> substantially improve the overall efficiency of the accountability process
> – restricting information g]flows is highly inefficient.
> ·         It would demonstrate Board’s commitment to a far higher level
> of transparency, and its acknowledgement that such transparency is the
> bedrock foundation of the enhanced accountability that should accompany the
> transition.
> ·         It would help restore trust between the CCWG and the Board,
> which was substantially bruised in LA.
>
> *Finally, while I would not advocate open participation in Board
> accountability discussions to the same extent that Board members can
> participate in  CCWG activities, I would propose consideration of
> establishment of a CCWG liaison who can do so, as well as report back to
> the CCWG on the Board’s thinking and concerns.*
>
> CCWG members seem aligned in thinking that greater transparency is an
> integral part of enhanced accountability, and much of what the CCWG has
> proposed relates to greater Board accountability. It seems inconceivable
> that such accountability can be achieved if the Board persists in its
> presently opaque mode of operation following the transition. The time to
> shine light on Board operations is coming, and its accountability
> deliberations is the place to begin.
>
> Let’s be frank. The CCWG and the Board are at an impasse, and if this
> accountability effort fails it will be seen as a failure of the MSM itself.
> That is a mortal threat to ICANN’s future and simply unacceptable. Dramatic
> shifts are required near-term to foster positive progress in Dublin, which
> is barely two weeks away.
>
> I hope that CCWG and Board members find these suggestions to be
> constructive, because that is the spirit in which they are offered.
>
> Best to all,
> Philip
>
>
> *Philip S. Corwin, Founding Principal*
> *Virtualaw LLC*
> *1155 F Street, NW*
> *Suite 1050*
> *Washington, DC 20004*
> *202-559-8597 <202-559-8597>/Direct*
> *202-559-8750 <202-559-8750>/Fax*
> *202-255-6172 <202-255-6172>/cell*
>
> *Twitter: @VlawDC*
>
> *"Luck is the residue of design" -- Branch Rickey*
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Steve
> DelBianco
> *Sent:* Wednesday, September 30, 2015 10:44 PM
> *To:* Alan Greenberg; egmorris1 at toast.net; Robin Gross; Accountability
> Cross Community
> *Subject:* Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do
> Anything!' problem
>
> This reply is to help inform today's discussion thread on Transparency.
>
> Our 2nd draft report includes the term transparency on 50 different
> pages.  But what really matters is how we add greater transparency into WS1
> proposals.  See these elements:
>
>
> We propose a new commitment in ICANN Bylaws:
>
> COMMITMENT 1. In performing its Mission, ICANN must operate in a manner
> consistent with its Bylaws for the benefit of the Internet community as a
> whole, carrying out its activities in conformity with relevant principles
> of international law and international conventions, and applicable local
> law and through open and transparent processes that enable competition and
> open entry in Internet-related markets.
>
>
> We propose a new element (blue text) for Core Value 2 in ICANN Bylaws:
>
> CORE VALUE 2. Seeking and supporting broad, informed participation
> reflecting the functional, geographic, and cultural diversity of the
> Internet at all levels of policy development and decision-making to
> ensure that the bottom-up, multistakeholder policy development process is
> used to ascertain the global public interest and that those processes are
> accountable and transparent;
>
>
> We require transparency as part of the new Community Forum (para 355 on
> p.53)
>
> We note that CWG-Stewardship requirement for IANA budget transparency in
> para 378:   the CWG-Stewardship Final Proposal has expressed a requirement
> that the budget be transparent with respect to the IANA Function’s
> operating costs with clear itemization of such costs to the project level
> and below as needed.
>
>
>
> Our new requirement for an annual report on Transparency (para 511-512 on
> p.74):  ICANN will produce an annual report on the state of improvements to
> Accountability and Transparency.
>
>
>
> We give all AoC review teams unprecedented access to ICANN internal
> documents.  See Confidential Disclosure policy, para 521 – 527 on p.75.
>
>
>
> We require each AoC review team to be transparent about the degree of
> consensus achieved in their report.   (para 529 on p.75)
>
>
> And for WS2, there’s this:
>
> Transparency: The community has expressed concerns regarding the ICANN
> document/information access policy and implementation. Free access to
> relevant information is an essential element of a robust independent review
> process. We recommend reviewing and enhancing the Documentary Information
> Disclosure Policy (DIDP) as part of the accountability enhancements in Work
> Stream 2. (p.43)
>
> The subject of SO and AC accountability should be included in the purview
> of the Accountability and Transparency Review process as part of Work
> Stream 2 working plan. (p.71)
>
> Instituting a culture of transparency within the ICANN organization:
>  (p.121)
>
> o Limiting ICANN's ability to deny transparency and disclosure requests.
> o Enhancing the Ombudsman’s role and function.
> o Enhancing ICANN’s whistleblower policy.
> o Increasing transparency about ICANN interactions with governments.
>
>
>
> *From: *<accountability-cross-community-bounces at icann.org> on behalf of
> Alan Greenberg
> *Date: *Wednesday, September 30, 2015 at 8:00 PM
> *To: *"egmorris1 at toast.net", Robin Gross, Accountability Cross Community
> *Subject: *Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do
> Anything!' problem
>
> 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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