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

Matthew Shears mshears at cdt.org
Sun Oct 4 22:07:34 UTC 2015


I would support this as well - a necessary and overdue part of the 
overall process.

On 04/10/2015 21:41, Greg Shatan wrote:
> I support this as well, particularly with regard to transparency on 
> the part of the Board in the accountability process.
>
> For example, calls between counsel and the CCWG are on open and 
> transcribed calls, and all documents provided by counsel to the CCWG 
> are provided on the publicly archived email list and posted to a 
> publicly available wiki.
>
> The Board should do the same.
>
> Greg
>
> On Sat, Oct 3, 2015 at 8:21 AM, Robin Gross <robin at ipjustice.org 
> <mailto:robin at ipjustice.org>> wrote:
>
>     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 <tel:202-559-8597>/Direct*
>>     *202-559-8750 <tel:202-559-8750>/Fax*
>>     *202-255-6172 <tel: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>[mailto: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
>>     <mailto: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 (bluetext) 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-makingto 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
>>     <mailto: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 <mailto: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
>>     <mailto:alan.greenberg at mcgill.ca>>
>>     *Sent*: Wednesday, September 30, 2015 8:55 PM
>>     *To*: "Robin Gross" <robin at ipjustice.org
>>     <mailto:robin at ipjustice.org>>, "Accountability Cross Community"
>>     <accountability-cross-community at icann.org
>>     <mailto: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 <tel:202-559-8597>/Direct
>>     202-559-8750 <tel:202-559-8750>/Fax
>>     202-255-6172 <tel: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
>>     <mailto: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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-- 

Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology
mshears at cdt.org
+ 44 771 247 2987



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