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

Fri Oct 30 16:39:26 UTC 2015

Ws2* my apologies.
On 30 Oct 2015 22:08, "Padmini" <pdmnbaruah at gmail.com> wrote:

> Still waiting for an answer. Who took the call to include transparency in
> ws1?
> On 30 Oct 2015 21:48, "Schaefer, Brett" <Brett.Schaefer at heritage.org>
> wrote:
>
>> Excellent points.
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Guru
>> Acharya
>> *Sent:* Friday, October 30, 2015 11:48 AM
>> *To:* Drazek, Keith
>> *Cc:* accountability-cross-community at icann.org
>> *Subject:* Re: [CCWG-ACCT] Transparency recap (Was: Contribution on
>> Transparency Reforms for CCWG)
>>
>>
>>
>> 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
>>
>>
>>
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>>
>>
>> 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
>> heritage.org
>>
>> ________________________________
>> 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
>>
>>
>>
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