[CCWG-ACCT] Transparency recap (Was: Contribution on Transparency Reforms for CCWG)

Fri Oct 30 15:48:02 UTC 2015

I disagree with Alan and Greg that shifting transparency to WS1 is a
mission creep. According to them, "right to inspection" is the only
transparency power lost due to change in reference models which can easily
be compensated by giving the designator inspection powers. This is wrong
because change in reference model also changes the mode of enforcement from
direct to indirect. Their argument fails to account for the fact that the
enforcement model has now become indirect making information asymmetry a
key "bottleneck" for enforcement. Our reliance on arbitration and community
discussions will increase substantially wherein information is the key for
an informed argument. If transparency is not included in WS1 then the ICANN
staff and board will be able to frustrate both arbitration and community
discussions endlessly if the community fails to get their hands on the
right information at the right time - as a result making indirect
enforcement impractical.

This is not an attempt to neglect WS2. This is only an attempt to bring a
parity between the designator and member models in WS1. Information
asymmetry is an extremely big accountability concern, less so with a direct
form of enforcement and more so with an indirect form of enforcement.
Merely giving the right to inspection to the designator does not bring
parity between the member and designator models.

On Fri, Oct 30, 2015 at 8:01 PM, Drazek, Keith <kdrazek at verisign.com> wrote:

> I disagree with Alan. It is not mission creep. If the community is to rely
> on removal/recall of the Board to enforce powers, the community needs
> reasonable and predictable visibility into the organization's deliberations
> and decision-making. This is part of the evolution of our reference model.
>
> I agree with Chris that the right of inspection should be conferred at the
> SO/AC level, subject to a reasonable consensus threshold.
>
> Regards,
> Keith
>
> On Oct 30, 2015, at 10:19 AM, Alan Greenberg <alan.greenberg at mcgill.ca>
> wrote:
>
> Transparency is needed, but the CCWG identified this as a WS2 issue. Yes,
> when we were talking about membership, some of this automatically would be
> provided, but it was not de facto a WS1 issue. To add it now is mission
> creap.
> --
> Sent from my mobile. Please excuse brevity and typos.
>
> On October 30, 2015 11:34:29 AM GMT+00:00, Chris Disspain <ceo at auda.org.au>
> wrote:
>>
>> I disagree. I do not believe there is yet consensus.
>>
>> I am not in favour of any ‘rights’ other than the enforcement rights
>> already agreed being given to the designator. I have no issue with the
>> right of inspection being given to the SOs and ACs pursuant to an agreed
>> level of consensus.
>>
>>
>>
>> Cheers,
>>
>>
>> Chris Disspain | Chief Executive Officer
>>
>> .au Domain Administration Ltd
>>
>> T: +61 3 8341 4111 | F: +61 3 8341 4112
>>
>> E: ceo at auda.org.au | W: http://www.auda.org.au
>>
>> auDA – Australia’s Domain Name Administrator
>>
>>
>> *Important Notice* *- *This email may contain information which is
>> confidential and/or subject to legal privilege, and is intended for the use
>> of the named addressee only. If you are not the intended recipient, you
>> must not use, disclose or copy any part of this email. If you have received
>> this email by mistake, please notify the sender and delete this message
>> immediately. Please consider the environment before printing this email.
>>
>> On 30 Oct 2015, at 22:25 , Schaefer, Brett <Brett.Schaefer at heritage.org>
>> wrote:
>>
>> Matthieu,
>>
>> I may be wrong, but based on the comments on the list and in Dublin that
>> there is broad agreement, I would even say consensus, that the right to
>> inspect needs to be granted to the designator.
>>
>> The discussion recently has focused on how much of the other transparency
>> provisions to bring forward to WS1. I and others think a substantial
>> amount, others disagree. If a compromise or centrist position is being
>> sought, I suggest it that it focus on these items of dispute.
>>
>> Thanks,
>>
>> Brett
>>
>>
>>
>> ________________________________
>> 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
>> http://heritage.org<http://heritage.org/>
>>
>>
>> On Oct 30, 2015, at 5:24 AM, Edward Morris <egmorris1 at toast.net<
>> mailto:egmorris1 at toast.net <egmorris1 at toast.net>>> wrote:
>>
>> Mathieu,
>>
>> Thank you very much for this post. I  want to succinctly thank the Chairs
>> for their exemplary leadership on this issue, express my support for their
>> rational, considered, centered and measur ed approach to transparency and
>> inspection issues, and express my full support for the approach indicated,
>> with work beyond the transposing of certain provisions from the old
>> reference model into into the new reference model to be tackled in work
>> stream 2. It is an approach between the two extremes recently debated on
>> list and as a centrist in most things in life find it a reasonable way
>> forward that should provide us with the best opportunity to get this done
>> right. Thanks again.
>>
>> Best,
>>
>> Ed Morris
>>
>>
>> Sent from my iPhone
>>
>> On Oct 30, 2015, at 8:15 AM, Mathieu Weill <mathieu.weill at afnic.fr<
>> mailto:mathieu.weill at afnic.fr <mathieu.weill at afnic.fr>>> wrote:
>>
>> Dear Colleagues,
>>
>> First of all many thanks to all of you wh o have been working hard on
>> this issue. We are well aware of your efforts to find an approach that
>> would be acceptable to all on this question.
>>
>> Regarding transparency discussions, I would like to remind everyone of
>> the content and conclusions of our discussions on Transparency in the Sole
>> Designator model while we were in Dublin.
>>
>>
>> -          Our lawyers have confirmed that the same level of transparency
>> could be achieved in the Sole Designator model as with the Sole Member, by
>> adding a specific provision to the Bylaws enabling the Sole Designator to
>> inspect Ican’s accounting books and records.
>>
>> -          In response to a concern raised by Sam Eisner about public
>> disclosure of such documents, we discussed how we could use the same type
>> of provision that we had agreed on for the AoC reviews as a safeguard (see
>> below the relevant extract from the AoC section, provided by Steve del
>> Bianco)
>>
>> -          There was a debate about whether or not extra provisions for
>> transparency were needed in Work stream 1, considering that we have
>> agreement that the topic is on the WS2 agenda. There was no formal
>> conclusion.
>>
>> Thomas did conclude by saying “So that’s one action item for our group to
>> set up a subteam to define the exact language and extent to which a
>> transparency is required.”
>>
>> In terms of way forward, given the input we have received, I believe the
>> question is whether transparency provisions, beyond the records inspection
>> rights, fit with our agreed definition of Work stream 1, and whether the
>> level of consensus on the extra provisions at this stage is sufficient.
>>
>> I would note that, with the group’s input, our WS2 initiative would
>> already be well advanced. It might be possible to launch it very soon after
>> we have submitted our WS1 recommendations if that is the path we take.
>>
>> Best,
>> Mathieu
>>
>> For your reference :
>> Full transcript -->
>> https://community.icann.org/download/attachments/56143884/Transcript%20CCWG%20ACCT%20Working%20Session%202_21%20October.pdf?version=1&modificationDate=1445525810000&api=v2
>> Slide-deck -->
>> https://community.icann.org/download/attachments/56143884/CCWG-Accountability%20Working%20Session%20II%20%281%29-1.pdf?version=1&modificationDate=1445444965000&api=v2
>>
>> page 75 of AoC reviews as part of WS1.
>> Confidential Disclosure to Review Teams:
>> To facilitate transparency and openness regarding ICANN's deliberations
>> and operations, the Review Teams, or a subset thereof, shall have access to
>> ICANN internal information and documents. If ICANN refuses to reveal
>> documents or information requested by the Review Team, ICANN must provide a
>> justification to the Review Team. If the Review Team is not satisfied with
>> ICANN’s justification, it can appeal to the Ombudsman and/or the ICANN
>> Board for a ruling on the disclosure request.
>>
>> For documents and information that ICANN does disclose to the Review
>> Team, ICANN may designate certain documents and information as not for
>> disclosur e by the Review Team, either in its report or otherwise. If the
>> Review Team is not satisfied with ICANN’s designation of non-disclosable
>> documents or information, it can appeal to the Ombudsman and/or the ICANN
>> Board for a ruling on the non-disclosure designation.
>>
>> A confidential disclosure framework shall be published by ICANN. The
>> confidential disclosure framework shall describe the process by which
>> documents and information are classified, including a description of the
>> levels of classification that documents or information may be subject to,
>> and the classes of persons who may access such documents and information.
>>
>> The confidential disclosure framework shall describe the process by which
>> a Review Team may request access to documents and information that are
>> designated as classified or restricted access.
>>
>> The confidential disclosure framework shall also describe the provisions
>> of any non-discl osure agreement that members of a Review Team may be asked
>> to sign.
>>
>> The confidential disclosure framework must provide a mechanism to
>> escalate and/or appeal the refusal to release documents and information to
>> duly recognized Review Teams.
>>
>>
>>
>> De : accountability-cross-community-bounces at icann.org<
>> mailto: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>] De la part de Kieren
>> McCarthy
>> Envoyé : jeudi 29 octobre 2015 15:58
>> À : Padmini
>> Cc : accountability-cross-community at icann.org<
>> mailto:accountability-cross-community at icann.org
>> <accountability-cross-community at icann.org>>
>> Objet : Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>
>> I have to agree with Padmini on this one re: DIDP and being "able to
>> refer the requestor to documents already publicly available".
>>
>> The information provided is often tangential to what has actually been
>> asked for. In quite a few cases it is so far removed from the query that it
>> is almost obnoxious.
>>
>> I don't know why Board members have such a blind spot about how the staff
>> behaves to those outside the corporation.
>>
>> And I'm still waiting to hear a Board member - any Board member -
>> announce that they have decided to look into the staff's bylaw-breaking
>> behavior in the .africa application.
>>
>> If I was on the Board and I heard that th e entire process was being
>> jeopardized by staff wrongly interfering in the process (and then lying
>> about doing so), I'd make sure the community knew I was doing my job and
>> insist on some kind of internal review of what happened and what could be
>> done to make sure it didn't happen again.
>>
>> But instead we get silence and fantasy responses like these ones from
>> Bruce about how the DIDP works and the effectiveness of ICANN's financial
>> reporting systems.
>>
>>
>> Kieren
>>
>>
>>
>> On Thu, Oct 29, 2015 at 5:41 AM, Padmini <pdmnbaruah at gmail.com<
>> mailto:pdmnbaruah at gmail.com <pdmnbaruah at gmail.com>>> wrote:
>> Dear Bruce,
>> As someone who has spent some time combing through the different
>> responses that ICANN files to the various DIDP requests, my findings are
>> slightly different, and have been posted earlier.
>> While ICANN does link one to an innumerable array of documents that are
>> publicly available, many times, there is little or no connection between
>> the information one seeks and the publicly available documents that are
>> provided. For instance, I have asked a few questions on registrar/registry
>> audits, specifically seeking individual contracted party audit reports in
>> cases where there have been breaches or discrepancies. However, the
>> response contains a large number of links explaining ICANN's
>> three-year-audit process in great detail, and at the end has a rejection of
>> my actual request on the basis of certain of their extremely vast and broad
>> grounds for non-disclosure. I like to refer to this as ICANN's tendency
>> towards documentary obfuscation where they aren't actually giving you the
>> information that you need, but are drowning you in documents anyway.
>> That 66 is a figure that we might need to scrutinise closer in terms of
>> how effective those disclosures actually have been.
>> Warm Regards
>> Padmini
>> Programme Associate, Internet Governance
>> Centre for Internet and Society, Bangalore, India
>>
>> Padmini Baruah
>> V Year, B.A.LL.B. (Hons.)
>> NLSIU, Bangalore
>>
>> On Thu, Oct 29, 2015 at 12:16 PM, Bruce Tonkin <
>> Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au
>> <Bruce.Tonkin at melbourneit.com.au>>> wrote:
>> Hello Greg,
>>
>> 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 dem and on the corporation of any
>> member at any reasonable time, for a purpose reasonably related to
>> such person's interests as a member.
>>
>> The minutes are basically published today.    The only minutes apparently
>> that are not posted are compensation committee minutes – but even then we
>> could at least note the items discussed without necessarily disclosing some
>> personal information.
>>
>> With regard to financials– we are already moving towards the same
>> standards as publicly listed companies in the USA.   We now provide
>> quarterly financial reporting, and a quarterly call where the community can
>> question the CEO and the CFO on the income and expenditure.   It would not
>> be normal to provide people with access to the raw accounting system (in
>> this case Great Plains) – which would include information on payments to
>> all staff etc.
>>
>> We do use an ex ternal auditor to validate our financials and processes
>> once per year.
>>
>> If there is a community  concern about a particular financial matter (e.g
>> concern about whether procurement policies were being followed) – then I
>> think it would be more appropriate if the single legal entity that
>> represents the community powers has the right to appoint an external
>> auditor to validate any particular process or numbers and report back to
>> the community.      Audit firms have the appropriate skills to analyse
>> financial accounting records and also have appropriate procedures in place
>> for confidentiality.
>>
>> I think we should be focussing on improving the processes we already
>> have.   I advocated moving to quarterly financial reporting, and I have
>> certainly been a strong advocate of making things as public as possible,
>> and welcome suggestions for improving our processes.
>>
>> Regards ,
>> Bruce Tonkin
>>
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<
>> mailto:Accountability-Cross-Community at icann.org
>> <Accountability-Cross-Community at icann.org>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<
>> mailto:Accountability-Cross-Community at icann.org
>> <Accountability-Cross-Community at icann.org>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<
>> mailto:Accountability-Cross-Community at icann.org
>> <Accountability-Cross-Community at icann.org>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<
>> mailto:Accountability-Cross-Community at icann.org
>> <Accountability-Cross-Community at icann.org>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> ------------------------------
>>
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151030/c8e888ea/attachment.html>