[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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