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

Wed Sep 30 19:57:24 UTC 2015

I feel comfortable that we start to realise that consensus id also considered as an alternative to voting.
Kavousd 

Sent from my iPhone

> On 30 Sep 2015, at 21:53, Drazek, Keith <kdrazek at verisign.com> wrote:
> 
> But it sure would simplify that whole “interim Board” or “replacement Board” solution…. ;-)
>  
> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
> Sent: Wednesday, September 30, 2015 3:49 PM
> To: 'Jordan Carter'; 'Greg Shatan'
> Cc: 'Accountability Cross Community'
> Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
>  
> I think Greg was joking, Jordan … J
>  
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
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>  
>  
> From: Jordan Carter [mailto:jordan at internetnz.net.nz] 
> Sent: Wednesday, September 30, 2015 3:34 PM
> To: Greg Shatan <gregshatanipc at gmail.com>
> Cc: Accountability Cross Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
>  
> 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
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>  
> "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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