[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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