[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
Avri Doria
avri at acm.org
Wed Sep 30 19:20:18 UTC 2015
Hi,
Oh yeah, I can see them really lining up behind a shadow board.
avri
On 30-Sep-15 15:16, Greg Shatan wrote:
> We could even go so far as to suggest that the Single Member have a
> board that mirrors the ICANN board, seat by seat.
>
> I would be curious to see the Board's response to that.
>
> On Wed, Sep 30, 2015 at 3:08 PM, Robin Gross <robin at ipjustice.org
> <mailto:robin at ipjustice.org>> wrote:
>
> Agree 100%. We would be sorely amiss in our duty to enhance
> ICANN's accountability if we did not address the concerns about
> transparency in decision making at ICANN.
>
> Robin
>
>
> On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote:
>
>> Transparency of Board meetings and deliberations is long overdue
>> and sorely needed. It should be the rule with very narrow
>> exceptions.
>>
>> Sunlight is the best disinfectant.
>>
>> Philip S. Corwin, Founding Principal
>> Virtualaw LLC
>> 1155 F Street, NW
>> Suite 1050
>> Washington, DC 20004
>> 202-559-8597 <tel:202-559-8597>/Direct
>> 202-559-8750 <tel:202-559-8750>/Fax
>> 202-255-6172 <tel:202-255-6172>/Cell
>>
>> Twitter: @VLawDC
>>
>> "Luck is the residue of design" -- Branch Rickey
>>
>> Sent from my iPad
>>
>> On Sep 29, 2015, at 10:24 PM, Edward Morris <egmorris1 at toast.net
>> <mailto:egmorris1 at toast.net>> wrote:
>>
>>> Hi Jordan,
>>>
>>> I appreciate the spirit in which this thread is intended.
>>>
>>>
>>> --That is, aside from the five community powers and the ability
>>> to enforce the bylaws against the Board, the other powers the
>>> California law grants to member/s (document inspection, dissolve
>>> the company, etc), should face such high thresholds to action
>>> that they can, practically speaking, never be actioned at all.
>>> So how to resolve this? The CCWG's choice of a Single Member
>>> (following its earlier choice of multiple members) was to meet
>>> the accountability requirements the community has asked for. But
>>> nobody asked for the community to have these other powers.
>>>
>>>
>>> I disagree with this premise with regards the inspection right.
>>> I've certainly made that a central component of what I've tried
>>> to accomplish here. Kieren has been a strong advocate, as well,
>>> calling it a "red line";
>>>
>>> ---
>>>
>>> On 07/08/2015 11:37 PM, Kieren McCarthy wrote:
>>> A quick view specifically on "rights of inspection".
>>> I think enabling that some entity gets this right would be one
>>> of the
>>> most useful of all possible accountability improvements.
>>> It would - perhaps over time - pull out any motivations that
>>> might exist
>>> for ICANN to be misleading or less than truthful in its
>>> reporting. This
>>> is going to be especially important as ICANN receives
>>> increasingly large
>>> amounts of revenue and particularly given its current weak financial
>>> controls.
>>> (See:
>>> http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
>>> I predict that ICANN corporate will fight hard to prevent any entity
>>> from gaining this right. And that it will continue to fight hard
>>> even
>>> when someone has that right. That in itself should be a good
>>> indicator
>>> for why it should be a redline for the accountability group.
>>> To my mind, not allowing ICANN to hide information is the epitome of
>>> actual accountability. If you can't hide it, then to save on
>>> embarrassment you consider how best to share it. Over time,
>>> everyone gains.
>>>
>>> Kieren
>>>
>>> -----
>>> I agree with Kieren. One of the reasons I've been content with
>>> putting transparency in work stream 2 is I've known the
>>> Inspection right came with membership in work stream 1. If that
>>> is to be excised then we need to do transparency in work stream
>>> 1. You can not have accountability without transparency. I've
>>> been involved in reconsideration requests where we have fought
>>> and lost in our attempts to get documents from ICANN that would
>>> have allowed us to have a chance of winning either the
>>> reconsideration or the IRP that would conceivably follow.
>>> Without access to documents many of the reforms we're proposing
>>> will be of minimal value to litigants. Of course, I await the
>>> specifics of the discovery mechanisms that will accompany the
>>> IRP and reconsideration reforms.
>>>
>>> I've watched as many "fears" of the legally uneducated became
>>> "truths" when repeated enough. I saw the concept of the
>>> derivative lawsuit, a power that should be welcomed by anyone
>>> interested in true accountability, so misconstrued and tangled
>>> CCWG members and participants acted out of fear this legal right
>>> could be used on a regular basis for anything, rather than what
>>> it is: a remedy designed for use in extreme situations as
>>> protection against double dealing and other types of corporate
>>> malfeasance.
>>>
>>> Rather than try to explain Inspection beyond what Kiernen has
>>> done above let me ask this: 1. Why don't we want the right of
>>> Inspection (aka in ICANN circles as the Auerbach rights)? 2. If
>>> we have them why do we want to create high thresholds for the
>>> use of those powers? Tell me how these two positions strengthen
>>> ICANN's accountability to a greater degree than inspection
>>> rights with low thresholds.
>>>
>>> And, perhaps most of all, where has the discussion occurred
>>> leading one and all to believe that we don't want these rights?
>>> Point to the thread, the legal advice etc. I've seen the big FUD
>>> over derivative rights. Where is something similar, or honest
>>> rejection of Inspection rights? Don't assume these are not
>>> important issues to some of us merely because we haven't been
>>> discussing them. They were in all of the proposals that have
>>> gone out for public comment. There is little need to fight for
>>> something you already have. I'm looking forward to receiving an
>>> analysis of the public comments to see this outpouring of
>>> opposition to the inspection rights. It must be there because
>>> I'm hard pressed to find extensive opposition anywhere else.
>>>
>>> Do we need these rights? Well, if we are going to dump them
>>> we need a complete revamp of ICANN's transparency policy to be
>>> done in work stream 1. No transparency, no accountability. No
>>> accountability, no transition.
>>>
>>> Best,
>>>
>>> Ed
>>>
>>>
>>> - I reproduce here California Corporations Code §8333:
>>>
>>>
>>> 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.
>>>
>>>
>>> This is the heart of the Inspection right. It is so key I'll
>>> give it a name: the Anti-FIFA clause.
>>>
>>> It is a guarantee the corruption at FIFA will not happen at the
>>> new ICANN.
>>>
>>> The anti-FIFA clause is the principle reason I strongly support
>>> the Inspection right.
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>>>
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