[CCWG-ACCT] Contribution on Transparency Reforms for CCWG

Wed Oct 28 20:01:14 UTC 2015

There seems to be an attempt at severe "mission creep" (or in this case,
"mission leap") taking place here.

When we moved from "member" to "designator" as our reference model, we gave
up the statutory right of inspection under Section 6333 of the California
Corporations Code.  In order to bridge the gap between "member" and
"designator," we discussed trying to give the Sole Designator essentially
the same rights that the Sole Member would have had under Section 6333.
The member's rights under 6333 are actually quite limited.  This was not
intended to move all transparency issues from WS2 to WS1.  Yet it seems
that there's a move by a "small subgroup" to try and take this narrow
opening and wedge an entire transparency wishlist into Work Stream 1.  This
urge to overreach should be resisted by the CCWG, and even by the small
subgroup.

Section 6333 reads as follows:

6333.  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.

We should strive to give the Designator similar rights in WS1 *and nothing
more*.  Widespread transparency "reforms" are well beyond the scope of WS1
or the time we have on our timeline to debate and consider each of the
various proposals embodied in the small subgroup's document.  Rather than
using that document as a starting point, I suggest we park that document
for use in WS2, and use Section 6333 as our starting point.

Key points of Section 6333:

   1. It is a right exercised only by a member. In our prior model, it
   would have been a right exercised only by the Sole Member.  Now, it should
   be a right exercised only by the Sole Designator
   2. It is limited to particular types of materials:
      1. "accounting books and records"
      2. "minutes of proceedings of the members"
      3. "minutes of proceedings of ... the board"
      4. "minutes of proceedings of ... committees of the board"
   3. It is a right that can only be exercised "for a purpose reasonably
   related to" the member's interests "as a member."
   4. It requires the member to activate the right by making a "written
   demand on the corporation" to initiate the right; the corporation is not
   obligated under 6333 to disclose anything on its own initiative or due to
   its mere existence as a corporation.
   5. It is a right to "inspection."

Terms like "accounting books and records" and "open to inspection," among
others, have fairly specific legal meanings in the context of 6333.  Our
counsel can enlighten us on the specifics, but it is important to be aware
that these are limited terms.

Our job should be to translate 6333 into the Bylaws as faithfully as
possible.  No more, no less. I hesitate to suggest any flexibility, lest
there be another attempt to pass a camel through the eye of a needle.

A final note -- Section 6336 provides a specific enforcement right if a
corporation refuses a "lawful demand" under Section 6333.  This should also
be imported into the Bylaws.

Greg

On Wed, Oct 28, 2015 at 3:24 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:

> Hello Brett,
>
> I think we may be talking pass each other here. What is currently being
> done in relation to transparency is a NEW issue under WS1 i.e things
> required for stewardship transition to happen.
>
> I don't agree to the rationale that need for transparency is largely
> dependent on what model is decided upon. Transparency is an act that should
> always be encouraged (within the mission of an organisation) and its a
> continuous effort as much as it's a very tricky topic that needs to be
> carefully addressed (just like human rights within ICANN). Going members
> route would not necessarily increase/reduce transparency neither will
> designator, hence its model independent. So IMO that reason just does not
> "draw much water".
>
> Again a transcript, TOR, and timeline pointers for these new item would be
> appreciated as I have not found one yet.
>
> Regards
>
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
> On 28 Oct 2015 20:03, "Schaefer, Brett" <Brett.Schaefer at heritage.org>
> wrote:
>
>> Seun,
>>
>>
>>
>> It is not a new issue, transparency was always on the accountability to
>> do list. It was just not as considered as urgent as other issues because of
>> the powers inherent in the membership model. The recent change in models
>> was the impetus for the change, not a random desire to introduce items at
>> the last minute. If membership had remained the model, in my opinion, I
>> don’t think this would have happened.
>>
>>
>>
>> Best,
>>
>>
>>
>> Brett
>>
>>
>>
>> *From:* Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
>> *Sent:* Wednesday, October 28, 2015 2:53 PM
>> *To:* Schaefer, Brett
>> *Cc:* James Gannon; accountability-cross-community at icann.org
>> *Subject:* RE: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>
>>
>>
>> Thanks Brett, I may have missed that particular session where it was
>> decided that additional items be introduced to WS1. A pointer to that
>> transcript will be helpful and it will also be good to know what working
>> party James team is called, their TOR and what their meeting
>> modalities/timelines are.
>>
>> That said, I am concerned that the CCWG is introducing new items at this
>> last minutes of WS1. It makes me wonder what our priorities are.
>>
>> Thanks again for your response.
>>
>> Regards
>> Sent from my Asus Zenfone2
>> Kindly excuse brevity and typos.
>>
>> ------------------------------
>> Brett Schaefer
>> Jay Kingham Senior Research Fellow in International Regulatory Affairs
>> Margaret Thatcher Center for Freedom Davis Institute for National
>> Security and Foreign Policy
>> The Heritage Foundation
>> 214 Massachusetts Avenue, NE
>> Washington, DC 20002
>> 202-608-6097
>> heritage.org
>>
>> On 28 Oct 2015 19:30, "Schaefer, Brett" <Brett.Schaefer at heritage.org>
>> wrote:
>>
>> Seun,
>>
>>
>>
>> At the CCWG meetings last week, there was agreement that the move from
>> member to designator (and the lesser powers it would have in many areas,
>> including the right of inspection) should result in transparency concerns
>> being moved from WS2 up to WS1.
>>
>>
>>
>> Best,
>>
>>
>>
>> Brett
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Seun
>> Ojedeji
>> *Sent:* Tuesday, October 27, 2015 3:57 PM
>> *To:* James Gannon
>> *Cc:* accountability-cross-community at icann.org
>> *Subject:* Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>
>>
>>
>> Hi James,
>>
>> If I may ask, which of the work stream or working party does this fall?
>> Will be good to know what action item of the CCWG gave birth to this. A
>> pointer will be appreciated.
>>
>> Regards
>>
>> Sent from my Asus Zenfone2
>> Kindly excuse brevity and typos.
>> ------------------------------
>>
>> *Brett* *Schaefer*
>>
>> * Jay Kingham Senior Research Fellow in International Regulatory Affairs
>> Margaret Thatcher Center for Freedom Davis Institute for National Security
>> and Foreign Policy*
>> The Heritage Foundation
>> 214 Massachusetts Avenue, NE
>> Washington, DC 20002
>> 202-608-6097
>> heritage.org
>>
>> On 27 Oct 2015 20:16, "James Gannon" <james at cyberinvasion.net> wrote:
>>
>> Hi Greg,
>>
>>
>>
>> A number of NCSG members and others who spoke on this issue in Dublin
>> including myself had started work on this during Dublin and once we had
>> something that was readable we brought it to the group to continue the work.
>>
>>
>>
>> -James
>>
>>
>>
>> *From: *<accountability-cross-community-bounces at icann.org> on behalf of
>> Greg Shatan <gregshatanipc at gmail.com>
>> *Date: *Tuesday 27 October 2015 at 7:09 p.m.
>> *To: *Robin Gross <robin at ipjustice.org>
>> *Cc: *CCWG-Accountability Community <
>> accountability-cross-community at icann.org>
>> *Subject: *Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>
>>
>>
>> In the interests of transparency, who is in the small subgroup?
>>
>>
>>
>> Thanks!
>>
>>
>>
>> Greg
>>
>>
>>
>> On Tue, Oct 27, 2015 at 3:00 PM, Robin Gross <robin at ipjustice.org> wrote:
>>
>> All:
>>
>>
>>
>> Here is a link to a document intended to contribute to CCWG's work on
>> improving transparency at ICANN:
>>
>>
>>
>>
>> https://docs.google.com/document/d/11sX-zY5uie9s7zNeGz2GIRXk7BBg2xrbN_pplpJnNvc/edit?pli=1#
>> <https://docs.google.com/document/d/11sX-zY5uie9s7zNeGz2GIRXk7BBg2xrbN_pplpJnNvc/edit?pli=1>
>>
>>
>>
>> The doc is the creation of small subgroup of CCWG participants focusing
>> on this transparency issue.  Feedback is most welcome!
>>
>>
>>
>> Thanks,
>>
>> Robin
>>
>>
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