[CCWG-ACCT] Contribution on Transparency Reforms for CCWG

Wed Oct 28 21:18:11 UTC 2015

One final point on "stream leap."  If we try to hustle all of our
transparency concerns into WS1, I think that signals that we are giving up
on the concept of WS2 and treating it as a "discard pile" rather than "next
steps."  In spite of the Board's suggestion that we atomize WS2 back into
ordinary processes and "continuous improvement," I'm not giving up on WS2
as a real sequel to CCWG WS1.  Indeed, for myself (and I assume others), my
support for many aspects of WS1 is contingent upon WS2 being real, robust
and guaranteed.

On Wed, Oct 28, 2015 at 5:10 PM, Edward Morris <egmorris1 at toast.net> wrote:

> Hi Greg,
>
> I'm not sure how much "mission creep" is involved here as it is "stream
> leap". I'm sympathetic to Brett and Paul's arguments that switching from
> designator to membership does change the equation in a way that more
> transparency immediately would be a desirable goal. I also recognise that
> we are in a time pressured enviroment and that the most concrete loss that
> absolutely must be addressed in the switch from membership to designatory
> models  is that of the loss of the statutory right of Inspection.
>
> Although a component of a switch to greater transparency Inspection itself
> is designed not for general and frequent use but for infrequent and more
> direct use. It should and I hope will be subject to the graduated model
> applicable to all of our community powers. At heart, Inspection is as much
> an anti-fraud provision as it is a transparency provision. If fraud occurs,
> a risk of any complex organisation with substantial resources, Inspection
> will let the community gain access to Board records and the accounts in a
> predetermined, methodological way, helping to preserve the stability of the
> organisation at a time it likely would be in crisis. There may be other
> infrequent uses of the Inspection right but in my mind that would be it's
> principle purpose. That's why I call it the "anti-FIFA" provision. It helps
> us prevent fraud.
>
> I am in complete agreement with you, Greg,  both about the need to
> faithfully transpose the provisions of §6333 into our Bylaws and as to the
> ability of our exceptional legal staff to do so. Holly and Rosemary are
> fantastic and quite knowledgeable about this issue and the specific
> statutory provision involved. I've been focused on this one aspect of
> membership since Roelof and I did the initial model schematics last winter.
> Indeed, I've harassed our fine Chairs and anyone who would listen to me
> about the need for this provision repeatedly for the past nine months. I
> thank folks for putting up with me. I wholeheartedly believe that we  need
> to have Inspection to ensure that we as a community and corporate entity
> will be able to manage any ill winds that may flow our way. There are times
> when sunshine does expose and help cure problems of many kinds.
>
> Of course, Inspection will just be the start of our effort to make ICANN
> the world leader in transparency amongst private corporations with public
> functions. I'm so excited to see the enthusiasm by so many anxious to build
> upon this start in work stream two. Accountability without transparency is
> impossible. Transparency alone creates accountability. I know that working
> together we can create a structure that will be a model for the world in
> this regard.  We start with Inspection and go from there. I look forward to
> working with everyone in a positive, constructive way going forward.
>
> Best,
>
> Ed
>
>
>
> ------------------------------
> *From*: "Greg Shatan" <gregshatanipc at gmail.com>
> *Sent*: Wednesday, October 28, 2015 8:03 PM
> *To*: "Seun Ojedeji" <seun.ojedeji at gmail.com>
> *Cc*: "accountability-cross-community at icann.org" <
> accountability-cross-community at icann.org>
> *Subject*: Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>
> There seems to be an attempt at severe "mission creep" (or in this case,
> "mission leap") taking place here.?
>
> When we moved from "member" to "designator" as our reference model, we
> gave up the statutory right of inspection under Section 6333 of the
> California Corporations Code.  In order to bridge the gap between "member"
> and "designator," we discussed ?trying to give the Sole Designator
> essentially the same rights that the Sole Member would have had under
> Section 6333.  The member's rights under 6333 are actually quite limited.
> This was not intended to move all transparency issues from WS2 to WS1.  Yet
> it seems that there's a move by a "small subgroup" to try and take this
> narrow opening and wedge an entire transparency wishlist into Work Stream
> 1.  This urge to overreach should be resisted by the CCWG, and even by the
> small subgroup.
>
> Section 6333 reads as follows:
>
>
> 6333.  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.
>
> We should strive to give the Designator similar rights in WS1 *and
> nothing more*.  Widespread transparency "reforms" are well beyond the
> scope of WS1 or the time we have on our timeline to debate and consider
> each of the various proposals embodied in the small subgroup's document.
> Rather than using that document as a starting point, I suggest we park that
> document for use in WS2, and use Section 6333 as our starting point.
>
> Key points of Section 6333:
>
>    1. It is a right exercised only by a member. In our prior model, it
>    would have been a right exercised only by the Sole Member.  Now, it should
>    be a right exercised only by the Sole Designator
>    2. It is limited to particular types of materials:
>       1. "accounting books and records"
>       2. "minutes of proceedings of the members"
>       3. "minutes of proceedings of ... the board"
>       4. "minutes of proceedings of ... committees of the board"
>    3. It is a right that can only be exercised "for a purpose reasonably
>    related to" the member's interests "as a member."
>    4. It requires the member to activate the right by making a "written
>    demand on the corporation" to initiate the right; the corporation is not
>    obligated under 6333 to disclose anything on its own initiative or due to
>    its mere existence as a corporation.
>    5. It is a right to "inspection."
>
> Terms like "accounting books and records" and "open to inspection," among
> others, have fairly specific legal meanings in the context of 6333.  Our
> counsel can enlighten us on the specifics, but it is important to be aware
> that these are limited terms.
>
> Our job should be to translate 6333 into the Bylaws as faithfully as
> possible.  No more, no less. I hesitate to suggest any flexibility, lest
> there be another attempt to pass a camel through the eye of a needle.
>
> A final note -- Section 6336 provides a specific enforcement right if a
> corporation refuses a "lawful demand" under Section 6333.  This should also
> be imported into the Bylaws.
>
> Greg
>
>
> On Wed, Oct 28, 2015 at 3:24 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>>
>> Hello Brett,
>>
>> I think we may be talking pass each other here. What is currently being
>> done in relation to transparency is a NEW issue under WS1 i.e things
>> required for stewardship transition to happen.
>>
>> I don't agree to the rationale that need for transparency is largely
>> dependent on what model is decided upon. Transparency is an act that should
>> always be encouraged (within the mission of an organisation) and its a
>> continuous effort as much as it's a very tricky topic that needs to be
>> carefully addressed (just like human rights within ICANN). Going members
>> route would not necessarily increase/reduce transparency neither will
>> designator, hence its model independent. So IMO that reason just does not
>> "draw much water".
>>
>> Again a transcript, TOR, and timeline pointers for these new item would
>> be appreciated as I have not found one yet.
>>
>> Regards
>>
>> Sent from my Asus Zenfone2
>> Kindly excuse brevity and typos.
>> On 28 Oct 2015 20:03, "Schaefer, Brett" <Brett.Schaefer at heritage.org>
>> wrote:
>>>
>>>
>>>
>>> Seun,
>>>
>>>
>>>
>>> It is not a new issue, transparency was always on the accountability to
>>> do list. It was just not as considered as urgent as other issues because of
>>> the powers inherent in the membership model. The recent change in models
>>> was the impetus for the change, not a random desire to introduce items at
>>> the last minute. If membership had remained the model, in my opinion, I
>>> don’t think this would have happened.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Brett
>>>
>>>
>>>
>>> *From:* Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
>>> *Sent:* Wednesday, October 28, 2015 2:53 PM
>>> *To:* Schaefer, Brett
>>> *Cc:* James Gannon; accountability-cross-community at icann.org
>>> *Subject:* RE: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>>
>>>
>>>
>>> Thanks Brett, I may have missed that particular session where it was
>>> decided that additional items be introduced to WS1. A pointer to that
>>> transcript will be helpful and it will also be good to know what working
>>> party James team is called, their TOR and what their meeting
>>> modalities/timelines are.
>>>
>>> That said, I am concerned that the CCWG is introducing new items at this
>>> last minutes of WS1. It makes me wonder what our priorities are.
>>>
>>> Thanks again for your response.
>>>
>>> Regards
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>>
>>>
>>>
>>>
>>>
>>>
>>> ------------------------------
>>> Brett Schaefer
>>> Jay Kingham Senior Research Fellow in International Regulatory Affairs
>>> Margaret Thatcher Center for Freedom Davis Institute for National
>>> Security and Foreign Policy
>>> The Heritage Foundation
>>> 214 Massachusetts Avenue, NE
>>> Washington, DC 20002
>>> 202-608-6097
>>> heritage.org
>>>
>>>
>>>
>>>
>>>
>>> On 28 Oct 2015 19:30, "Schaefer, Brett" <Brett.Schaefer at heritage.org>
>>> wrote:
>>>
>>> Seun,
>>>
>>>
>>>
>>> At the CCWG meetings last week, there was agreement that the move from
>>> member to designator (and the lesser powers it would have in many areas,
>>> including the right of inspection) should result in transparency concerns
>>> being moved from WS2 up to WS1.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Brett
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Seun
>>> Ojedeji
>>> *Sent:* Tuesday, October 27, 2015 3:57 PM
>>> *To:* James Gannon
>>> *Cc:* accountability-cross-community at icann.org
>>> *Subject:* Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>>
>>>
>>>
>>> Hi James,
>>>
>>> If I may ask, which of the work stream or working party does this fall?
>>> Will be good to know what action item of the CCWG gave birth to this. A
>>> pointer will be appreciated.
>>>
>>> Regards
>>>
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>> ------------------------------
>>>
>>> *Brett* *Schaefer*
>>>
>>> *Jay Kingham Senior Research Fellow in International Regulatory Affairs
>>> Margaret Thatcher Center for Freedom Davis Institute for National Security
>>> and Foreign Policy*
>>> The Heritage Foundation
>>> 214 Massachusetts Avenue, NE
>>> Washington, DC 20002
>>> 202-608-6097
>>> heritage.org
>>>
>>> On 27 Oct 2015 20:16, "James Gannon" <james at cyberinvasion.net> wrote:
>>>
>>> Hi Greg,
>>>
>>>
>>>
>>> A number of NCSG members and others who spoke on this issue in Dublin
>>> including myself had started work on this during Dublin and once we had
>>> something that was readable we brought it to the group to continue the work.
>>>
>>>
>>>
>>> -James
>>>
>>>
>>>
>>> *From: *<accountability-cross-community-bounces at icann.org> on behalf of
>>> Greg Shatan <gregshatanipc at gmail.com>
>>> *Date: *Tuesday 27 October 2015 at 7:09 p.m.
>>> *To: *Robin Gross <robin at ipjustice.org>
>>> *Cc: *CCWG-Accountability Community <
>>> accountability-cross-community at icann.org>
>>> *Subject: *Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>>
>>>
>>>
>>> In the interests of transparency, who is in the small subgroup?
>>>
>>>
>>>
>>> Thanks!
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> On Tue, Oct 27, 2015 at 3:00 PM, Robin Gross <robin at ipjustice.org>
>>> wrote:
>>>
>>> All:
>>>
>>>
>>>
>>> Here is a link to a document intended to contribute to CCWG's work on
>>> improving transparency at ICANN:
>>>
>>>
>>>
>>>
>>> https://docs.google.com/document/d/11sX-zY5uie9s7zNeGz2GIRXk7BBg2xrbN_pplpJnNvc/edit?pli=1#
>>> <https://docs.google.com/document/d/11sX-zY5uie9s7zNeGz2GIRXk7BBg2xrbN_pplpJnNvc/edit?pli=1>
>>>
>>>
>>>
>>> The doc is the creation of small subgroup of CCWG participants focusing
>>> on this transparency issue.  Feedback is most welcome!
>>>
>>>
>>>
>>> Thanks,
>>>
>>> Robin
>>>
>>>
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>>>
>>>
>>>
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>>>
>>>
>>
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