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

Wed Sep 30 19:54:31 UTC 2015

How is it that this was not on our original list of requirements?

Alan

At 30/09/2015 03:08 PM, Robin Gross 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 
>><<mailto:egmorris1 at toast.net>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/>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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>>><ATT00001.c>
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