[CCWG-ACCT] Contribution on Transparency Reforms for CCWG
Edward Morris
egmorris1 at toast.net
Wed Oct 28 21:10:52 UTC 2015
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:
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 It is limited to particular types of materials: "accounting books and records" "minutes of proceedings of the members" "minutes of proceedings of ... the board" "minutes of proceedings of ... committees of the board"
It is a right that can only be exercised "for a purpose reasonably related to" the member's interests "as a member." 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. 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#
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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