[CCWG-ACCT] FIFA, Inspection, The Future

[George Sadowsky]

Dear Ed,

Thank you for your congratulations.

I take this opportunity to wish you success in your progression to becoming an elderly man.  I believe that you will agree that the alternative is worse.

Best regards,

George


> On Oct 19, 2015, at 11:07 AM, Edward Morris <egmorris1 at toast.net> wrote:
> 
> All,
>  
>  
> As I've finally made my way to Dublin, I've read the posts of the last few days with increased sorrow in my heart. What was once an almost idealistic concept of governing the global commons - the bottom up multi-stakeholder model - is on life support waiting for the plug to be pulled. A bunch of, many elderly, mostly men - congrats George on your reappointment - seem to have outplayed and outmanoeuvred a collection of well meaning but politically unsophisticated leaders of the ICANN community to cling to their power. Their victory will be short lived, however, as the plan we are being led to like sheep is not one that will be accepted by the American people or by their elected representatives in the United States Congress. Although I wish ICANN were internationalised, I'm thankful we still are tethered to some polity somewhere, even if it just to representatives of 300 million of this planets inhabitants. If this groups leadership insists on leading us down the primrose path of board centric governance this transition should and will fail. 
>  
> By eliminating membership and the statutory rights that come with it there is no real protection against ICANN becoming another FIFA. Contrary to what some cavalierly posit, there is no adequate substitute for the solid statutorily based Inspection rights granted Members under §6310 - §6338 of the California Corporations Code. This corporation will fight any and every attempt to make financial and Board related information available for public inspection and action. I personally believe that is the impetus for ICANN's opposition to the membership model. Board members currently have this right of Inspection but it should be noted that to get it Karl Auerbach had to take this entity to court to fight for it. Without access to these records, particularly to those of a financial nature and those involving the Board, there is nothing to prevent ICANN from becoming another opaque international body like FIFA, responsive only to itself.
>  
> ICANN = FIFA.
>  
> Be prepared for that analogy because if the CCWG decides to rejected it's well developed reference plan, the one proposed by our highly paid and talented attorneys when we told them what we wanted, that is what the less accountable plan chosen will become known as: The plan that does not prevent another FIFA. Count on it.
>  
> I'd like to respond to a few postings of the last few days of a CCWG participant  from the Heritage Foundation:
>  
> - Paul Rosenzweig:
> And it should not.  It is clear now that MEM was just a make weight proposal to "triangulate" CCWG so that the Board got the weak Designator model.  No inspection rights and no budget oversight means Board independence.  Very canny by the Board -- almost like MEM was a chimera.  I hope we don't fall for the ploy.
>  
>  
> We appear to be, Paul, and you are correct. MEM was never a serious proposal. Jones Day is a talented law firm and this proposal was so full of holes it could not have been a serious legal proposal. It was a political proposal designed to make designator appear to be a compromise solution. Exactly what seems to be happening.
>  
> Of note, when I sorted that out I made a call for us to secure the representation of Cam Kerry, brother of the Secretary of State, and other more politically astute members of the Sidley team. Once this was rejected, and I saw those who rejected it, I knew the model we had proposed was on it's way out. Why have independent advice as to the true political situation when you can have Ira's half baked notions of what is and what is not possible. Why fight when you can fold?
>  
>  
> -Paul Rosenzweig:
>  
> My understanding is that the Member of a corporation has certain statutory rights of inspection that would, if invoked, require the corporation to be more transparent.  In particular, the right of inspection, as I understand it, extends to a right to inspect financial records of the corporation and to demand public access to the minutes of Board meetings.  My further understanding is that these statutory rights are NOT available in the Designator model.
>  Assuming my understanding is correct (and I am more than happy to be corrected), what was the reasoning behind the argument for giving up these inspection rights?  To my mind they would be essential components of transparency and part of the key to maintaining good community insight into the operations of the corporation.  And that, in turn, seems to me a strong argument for the Membership model.  I’m not sure I see what the counter-argument is.
>  
>  
> Again, Paul. is correct and his questions remain unanswered.
>  
> I do want to make one major point: It has been argued that the ability to inspect corporate records has never been important to us, that it has not been raised as a key issue. That is correct but ONLY because the Inspection right has been part of our reference model for many months. Along with Roloef I created the template explaining membership to the full CCWG back in February. Inspection was listed. I pushed for membership because of Inspection. I did it on list and off list. Once we got Inspection with membership there was no reason to bring it up again.
>  
> If this leadership decides to move away from membership I suggest, nee demand, that EVERY statutory right that comes with membership that we will lose with designator be: 1) listed, 2) analysed by the CCWG counsel and 3) fully debated by the CCWG membership. I recognise that many in this community do not understand the statutory components of membership. I do and I like most of them. Others should have the same opportunity to fully know about and evaluate the the statutory rights before they are thrown away.
>  
> I would also like to comment on the many proposals that have proposed delaying membership to a future date. This idea has many guises, from Bruce's 'the community is not yet developed to the point where it is mature enough for membership', to Chris' well intentioned posts that also push consideration of such an idea into the future, to the famed plan B of triggering membership if we decide the plan we come up with isn't working too well. The later idea would be particularly destabilising: hey, world, look at our plan. We have so little confidence in it we're already planning for it's destruction.
>  
> All of these plans have one thing in common: the idea that membership may have some value, or not,  but at a later time, not now,  after the more "responsible" members of the Board lead us to that point. This is  concept that's been tried before. Students of history will recall the concept of dictatorship of the proletariat, the idea that the glorious days of equality promised by communist ideology would be realised only after a period of time when humanity would be led by wise men of the Party. It was illegitimate then, and as a model of governance for the internet with no link to a public polity,  that is governed, at a last instance,by a group of less than twenty "wise" old mostly men is equally illegitimate and doomed to fail.
>  
> Before accepting our fate, I would encourage members of this group to reject the lack of confidence in our community expressed by these criticisms of our reference model. It is ironic that critics of this proposal speak of capture in a reference model that actually disperses power among many groups. The true threat of capture is that by the Board in either of the models proposed as an alternative to membership.
>  
> It's not too late to do the right thing and to move forward with a proposal that does not lead ICANN in a direction where it would be susceptible to the type of fraud that has sunk FIFA. There is still time to chose a model based upon the strong, stable, precedent laden, known and knowable, membership provision of the California Corporations Code rather than stretching the Code with the less stable, less known, less precedent driven designator model, a use of designator in a way the California legislature never intended,  a model that will rely upon legal gimmickry to work, to the extent it will. We can still fulfil the promise of bottom up multi-stakeholderism if we chose to do so. In the words of a son of Ireland, President Kennedy, "if not us who, if not now when". 
>  
> Respectfully,
>  
> Ed Morris
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