<html>
<body>
I didn't say that is how it is happening, I said that was what the CCWG
was planning.<br><br>
Alan<br><br>
At 30/09/2015 08:50 PM, Greg Shatan wrote:<br>
<blockquote type=cite class=cite cite="">Given Larry Strickling's
statement about the readiness of our report, "final
adjustments" is probably an understatement. The overall framework
may only need final adjustments, but we have some significant gaps to
fill and a communications approach that may need a significant
re-think.<br><br>
Greg<br><br>
On Wed, Sep 30, 2015 at 8:00 PM, Alan Greenberg
<<a href="mailto:alan.greenberg@mcgill.ca">alan.greenberg@mcgill.ca</a>
> wrote:<br>
<dl>
<dd>Ed, I didn't ask why we had not ever discussed it, but rather why we
are now saying it had to be included in the current proposal. I was a
member of the ATRT2 and am more than painfully aware how ineffective the
DIDP is, and I have LONG campaigned for more transparency and
availability of internal documents.<br><br>
<dd>The CCWG process is somewhat stalled due to the reaction of the Board
to our draft proposal, but it was the draft that the CCWG was planning to
make some final adjustments to and submit as final. The transparency and
access issues were not mentioned. I believe that it is a WS2 issue and
discussing it now will do nothing but obfuscate the real issues that we
need to address.<font color="#888888"><br><br>
<dd>Alan</font><br><br>
<br>
<dd>At 30/09/2015 06:59 PM, Edward Morris wrote:<br>
<blockquote type=cite class=cite cite="">
<dd>HI Alan,<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>Best,<br>
<dd> <br>
<dd>Ed Morris<br>
<dd> <br>
<hr>
<dd>From</b>: "Alan Greenberg"
<<a href="mailto:alan.greenberg@mcgill.ca">alan.greenberg@mcgill.ca</a>
><br>
<dd>Sent</b>: Wednesday, September 30, 2015 8:55 PM<br>
<dd>To</b>: "Robin Gross"
<<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>>,
"Accountability Cross Community"
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
<dd>Subject</b>: Re: [CCWG-ACCT] A way to avoid the 'The Single Member
Can Do Anything!' problem <br>
<dd> <br>
<dd>How is it that this was not on our original list of
requirements?<br><br>
<dd>Alan<br><br>
<dd>At 30/09/2015 03:08 PM, Robin Gross wrote: <br>
<blockquote type=cite class=cite cite="">
<dd>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.<br><br>
<dd>Robin<br><br>
<br>
<dd>On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote:<br>
<dd> <br>
<blockquote type=cite class=cite cite="">
<dd>Transparency of Board meetings and deliberations is long overdue and
sorely needed. It should be the rule with very narrow
exceptions.<br><br>
<dd>Sunlight is the best disinfectant.<br><br>
<dd>Philip S. Corwin, Founding Principal<br>
<dd>Virtualaw LLC<br>
<dd>1155 F Street, NW<br>
<dd>Suite 1050<br>
<dd>Washington, DC 20004<br>
<dd><a href="tel:202-559-8597">202-559-8597</a>/Direct<br>
<dd><a href="tel:202-559-8750">202-559-8750</a>/Fax<br>
<dd><a href="tel:202-255-6172">202-255-6172</a>/Cell<br><br>
<dd>Twitter: @VLawDC<br><br>
<dd>"Luck is the residue of design" -- Branch Rickey<br><br>
<dd>Sent from my iPad<br><br>
<dd>On Sep 29, 2015, at 10:24 PM, Edward Morris
<<a href="mailto:egmorris1@toast.net">egmorris1@toast.net</a>>
wrote:<br>
<dd> <br>
<blockquote type=cite class=cite cite="">
<dd>Hi Jordan,<br>
<dd> <br>
<dd>I appreciate the spirit in which this thread is intended.<br>
<dd> <br>
<dd> <br>
<dd>--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.<br>
<dd>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.<br>
<dd> <br>
<dd> <br>
<dd>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";<br>
<dd> <br>
<dd>---<br>
<dd> <br>
<dd>On 07/08/2015 11:37 PM, Kieren McCarthy wrote:<br>
<dd>A quick view specifically on "rights of inspection".<br>
<dd>I think enabling that some entity gets this right would be one of
the<br>
<dd>most useful of all possible accountability improvements.<br>
<dd>It would - perhaps over time - pull out any motivations that might
exist<br>
<dd>for ICANN to be misleading or less than truthful in its reporting.
This<br>
<dd>is going to be especially important as ICANN receives increasingly
large<br>
<dd>amounts of revenue and particularly given its current weak
financial<br>
<dd>controls.<br>
<dd>(See:
<a href="http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/">
http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/</a>)<br>
<dd>I predict that ICANN corporate will fight hard to prevent any
entity<br>
<dd>from gaining this right. And that it will continue to fight hard
even<br>
<dd>when someone has that right. That in itself should be a good
indicator<br>
<dd>for why it should be a redline for the accountability group.<br>
<dd>To my mind, not allowing ICANN to hide information is the epitome
of<br>
<dd>actual accountability. If you can't hide it, then to save on<br>
<dd>embarrassment you consider how best to share it. Over time, everyone
gains.<br><br>
<dd>Kieren<br>
<dd> <br>
<dd>-----<br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>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.<br>
<dd> <br>
<dd>Best,<br>
<dd> <br>
<dd>Ed<br>
<dd> <br>
<dd> <br>
<dd>- I reproduce here California Corporations Code ยง8333:<br>
<dd> <br>
<dd> <br>
<dd>The accounting books and records and minutes of proceedings<br>
<dd>of the members and the board and committees of the board shall
be<br>
<dd>open to inspection upon the written demand on the corporation of
any<br>
<dd>member at any reasonable time, for a purpose reasonably related
to<br>
<dd>such person's interests as a member.<br>
<dd> <br>
<dd> <br>
<dd>This is the heart of the Inspection right. It is so key I'll give it
a name: the Anti-FIFA clause.<br>
<dd> <br>
<dd>It is a guarantee the corruption at FIFA will not happen at the new
ICANN.<br>
<dd> <br>
<dd>The anti-FIFA clause is the principle reason I strongly support the
Inspection right.<br><br>
<dd>No virus found in this message.<br>
<dd>Checked by AVG - <a href="http://www.avg.com/">www.avg.com</a><br>
<dd>Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date:
09/22/15<br>
<dd>Internal Virus Database is out of date.<br>
<dd><ATT00001.c></blockquote>
<dd>_______________________________________________<br>
<dd>Accountability-Cross-Community mailing list<br>
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a><br>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote><br><br>
<dd>_______________________________________________<br>
<dd>Accountability-Cross-Community mailing list<br>
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a><br>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote></blockquote><br>
<dd>_______________________________________________<br>
<dd>Accountability-Cross-Community mailing list<br>
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a><br>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br><br>
</dl></blockquote></body>
</html>