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

Wed Sep 30 23:37:26 UTC 2015

Having responded one way regarding transparency issues, I'm going to
respond another way.  We should not be diverted by the thought of adding
significant transparency changes to what we already have.

We need to focus.  There are worthy concerns that are not fully addressed
in WS1, and that is unfortunate. But the core of our proposal is at risk.
We need to bear down on filling in the gaps, resolving concerns from within
and without, and generally tighten things up.  Our work needs to be
interpolation and renovation, not extrapolation.  We should be open-minded
as to processes that can advance these efforts.

Our proposal needs a significant upgrade in clarity and intelligibility.
This has been a big and unwieldy beast; we all know that.  Explane has been
a great help in painting a picture at the highest level, but we can't put
the Explane proposal forward; it's just a teaching aid.  The full proposal
may also be a form of reference; but, as the main thing that people need to
comprehend, it leaves much to be desired.  We need a readable, cogent,
coherent, logical piece that tells the reader what our proposal is, with
enough detail to avoid FUD-like responses, but without getting bogged down
in the weeds.  I hesitate to call it an "Executive Summary," because it
should be able to stand on its own.  We can have annexes for the deep dives
and the methodology, etc.  But the heart of the document needs to be right
up front, and it needs to be compelling.

Greg

On Wed, Sep 30, 2015 at 6:59 PM, Edward Morris <egmorris1 at toast.net> wrote:

> HI Alan,
>
> I've raised this issue intermittently throughout our work. In Istanbul,
> Steve DelBianco kindly called upon me to talk about the failings of the
> DIDP to highlight the problem. In Buenos Aires, I raised the issue again
> and Thomas suggested towards the end of the meeting that perhaps we could
> move some transparency reform to work stream 1. Nothing became of that.
>
> This is not something we want to do in a rushed manner. Although
> simplistic on the face, much of what we need to do here is quite technical,
> involves state specific statutes (privacy, for example) and needs to be
> done carefully with the community working closely with ICANN staff, even in
> areas we may have some differences, in order to achieve an optimal
> outcome.  I was quite happy with the status quo reference model whereby the
> community would have access in extraordinary situations to the most
> important documentation fairly soon through WS! (inspection rights via
> membership) while the more comprehensive and structural reforms would be
> developed in WS2. Now that we're faced with apparently serious proposals to
> eliminate both WS 2 (Board proposal) and membership, consideration needs to
> be given to other ways to tackle transparency within the CCWG effort.
>
> I should let people know that I've been working with Farzaneh Badii and
>  Sarah Clayton on an analysis of all DIDP requests and responses. We're
> looking not only at quantifying things like success rates and DCND (defined
> conditions of nondisclosure) rejection rates but are also attempting to
> evaluate whether concerns that have been expressed to me privately by
> multiple Board members (for example, improper use of the DIDP by litigants
> in legal actions against ICANN as a substitution for / replacement of
> permissible discovery) are valid. The project is well underway and we hope
> to be able to present the results to everyone prior to our Dublin meeting.
>
> Best,
>
> Ed Morris
>
> ------------------------------
> *From*: "Alan Greenberg" <alan.greenberg at mcgill.ca>
> *Sent*: Wednesday, September 30, 2015 8:55 PM
> *To*: "Robin Gross" <robin at ipjustice.org>, "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
>
> 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 <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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