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

Wed Sep 30 19:41:23 UTC 2015

Avri:  I prefer to think of it as a "mirror board".  "Shadow" has
unintended connotations, especially in parliamentary systems like the U.K.

Jordan:  As an unincorporated association, the Single Member can have a
Board, should we choose to give it one.  That might raise more problems
than it solves, however.  As a variation, we could assign "voting" and
"advising" "slots" to the Single Member that mirror the seats on the Board.

Greg

On Wed, Sep 30, 2015 at 3:33 PM, Jordan Carter <jordan at internetnz.net.nz>
wrote:

> 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
>>> 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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>>
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>
>
> --
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
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