[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Wed Sep 30 19:33:45 UTC 2015

The Single Member does not have a Board. It is a counting mechanism of the
votes cast / consensus arrived at by the participating SOs/ACs.

Jordan

On 1 October 2015 at 08:16, Greg Shatan <gregshatanipc at gmail.com> 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> 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/Direct
>> 202-559-8750/Fax
>> 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> 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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Jordan Carter

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