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

Sun Oct 4 22:57:54 UTC 2015

I'd like to add a quick +1 here. It would be a very positive step for the
Board to match the transparency the community is exercising in this work.

Jordan

On 5 October 2015 at 11:07, Matthew Shears <mshears at cdt.org> wrote:

> 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> 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 <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>
>> accountability-cross-community-bounces at icann.org [mailto:
>> <accountability-cross-community-bounces at icann.org>
>> 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>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>
>> 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>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>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>
>> 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.
>>
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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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