[CCWG-ACCT] [community-finance] IANA Stewardship Transition - Project Expenses - FY16 Q3 update

Tue Aug 16 23:02:25 UTC 2016

On Tue, Aug 16, 2016 at 12:22 PM, parminder <parminder at itforchange.net>
wrote:

>
>
> On Tuesday 16 August 2016 08:45 PM, Greg Shatan wrote:
>
> Whether or not ICANN is a "public governance" body is largely irrelevant
> to the issue of ICANN's transparency obligations.
>
>
> There is 'transparency' and there is 'transparency'.
>

I have no idea what this means.

> Standards expected from corporations (and they do exist) are quite
> different from non profit bodies,
>

This is not necessarily true.  Many if not most non profit bodies are
corporations and subject to transparency standards that are quite similar.

> which is quite different from that expected from public bodies (or bodies
> involved in public governance). Which standards are ICANN expected to
> uphold. I dont see any reasons that they should be any lower than that for
> instance are upheld by government of US, and of India. One thing they can
> take form US gov is their standards of public transparency.
>
> I ask you; do you agree or not that ICANN should uphold these transparency
> standards that are upheld by public bodies?
>

I think ICANN should uphold transparency standards that are appropriate to
its mission and working methods.  It's improper to treat ICANN as if it
were a governmental body. In some ways, I think ICANN's transparency
standard should be higher than those of public bodies (which vary wildly,
even within the USG).  In other ways, those standards would be burdensome
and counterproductive.  So, no, I don't think we should borrow standards
from some other entity, whatever its status.  We can use all of them as
points of departure, but it would be a mistake to be beholden to any of
them.  That said, ICANN must uphold the transparency standards that come
with its status as a California public benefit corporation.

>
> If your answer is yes, the question arises why should ICANN uphold
> transparency level higher than normally required for for profit
> corporations or evne for non profit bodies. And the reason is that ICANN
> undertakes functions of a 'public governance' nature. That is the only
> rationale I can see, unless you tell me  a better one.
>

It never ceases to amaze me how some people find so many answers within
their own logic and so few elsewhere.

The reasons that underpin ICANN's transparency standards should come from
its functions and its working methods -- and this relates to both the
corporation and the ICANN structures (e.g., SO/ACs).  Since ICANN does not
undertake functions of a public governance nature, this cannot form the
basis for ICANN's transparency standards.  Since your rationale cannot be
used to defend the premise that it is based on -- that is the essence of
circular reasoning.

>
> ICANN's transparency obligations are an integral part of its method of
> operation as a corporation and a community.
>
>
> So, this is the rationale you offer.... But then why have ICANN
> transparency standards been so pathetic, if they are actually inherent to
> it (can one state a clearer self-contradiction). This is the familiar ICANN
> sovereignty and exceptionalism thing, coming from Internet
> exceptionalism....
>

I don't think ICANN's transparency *standards* have been pathetic.  I
think that ICANN's transparency *execution* has been lacking (I would not
go quite so far as to say pathetic).  This is no no way contradictory.
Indeed it forms the core of our need to get ICANN to improve its execution
on certain transparency fronts.  This has nothing to do with any
"sovereignty" argument. As for "exceptionalism," the essence of
exceptionalism is not merely that something is different, it is that it is
*better* and thus deserves to be treated differently.  We would like to
help ICANN be better, but that in no way means that I (or others) are
arguing for "exceptionalism" no matter how many times you try to pin that
label on.  Whatever one thinks of "internet exceptionalism" generally (and
I don't think one can think about monolithically), ICANN is an unusual
organization with an unusual role, and trying to bang it into a round hole
doesn't make it any less of a square peg.

>
>
> Yet there are times when ICANN falls short on transparency.  As a general
> matter, this concern is significant enough that we have a Transparency
> Subgroup for WS2 (which is where this discussion should continue in
> earnest).
>
> The specific case of transparency (or lack thereof) on expenditures (and
> particularly lobbying, "light lobbying," and "non-lobbying lobbying"
> related expenditures) is a significant example of those concerns.  I agree
> that a claim about following ordinary commercial practice does not resolve
> the issue.  But there is no need to attempt to recast ICANN as a "public
> governance" body -- we need look no further than ICANN's internal
> "governance" concepts.  To say they are atypical or unique is not a claim
> to "Internet exceptionalism" (not something I'd heard before this thread,
> but whatever) -- it is merely to acknowledge that ICANN is sufficiently
> different from "ordinary practices" that ordinary practices shouldn't
> apply.
>
>
> That is called 'exceptionalism' when ordinary extant ideas and concepts
> are taken not to apply to a phenomenon... As for 'internet exceptionalism',
> there are many scholarly articles and  at least one book on it... Just look
> up google .
>

See above.

>
> More specifically, ICANN's contracts with vendors need to build in levels
> of transparency that exceed ordinary practices, because ICANN's
> transparency obligations exceed ordinary transparency obligations.
>
>
> Where are these obligations? Can you show me where they exist, so that we
> can directly challenge their non fulfilment.
>

I'll leave that to the Transparency subgroup, on both counts

>
>   One need look no further than the method by which counsel to the CCWG
> (Sidley and Adler firms) work with the CCWG.  Ordinarily, attorney-client
> privilege is maintained by keeping communications between attorney and
> client confidential -- this applies to meetings and attorney advice.
> Instead, consultations with counsel and counsel's advice are both done in
> an open and transparent fashion, on recorded and transcribed calls and in
> documents that are publicly posted.
>
>
> 'Ordinarily' for whom, what class of organisations....?
>

Ordinarily for any organization receiving legal advice.

> I ask for 'public governance bodies' level standards.
>

Then you would have gotten no transparency on legal advice in this case.
That seems counterproductive. And counterintuitive.

> That would be a clear basis to work from.
>

Clear, perhaps, though the idea that public governance bodies have anything
close to a common set of standards is both unsupported and unsupportable.
There's as much variation there as in any grouping, if not more.

> Otherwise it is always a slippery and arbitrary argument.
>

I disagree on both counts.  It does not have to be arbitrary in any way.
We are dealing with a lot of known quantities; we just need to work from
there and do so in a thoughtful manner.  Mindlessly applying some mythical
"public governance bodies level standards" would be far more arbitrary.  As
for "slippery," I don't think that has any meaning here, other than to
sound vaguely objectionable.  "Slippery" is usually used in the context of
a "slippery slope" argument, i.e., one that claims that another person's
argument or proposal starts with reasonable cases but then leads down the
slippery slope to unreasonable or bizarre cases.  I don't see how that
applies.

>
> parminder
>
>
> Transparency regarding lobbying and other vendors and service providers
> should be handled in a similar fashion.  To the extent it's not (and it's
> not...), it's fair to cry "foul" and to demand improvement.
>
> This can all be done in the context of ICANN as it is.
>
> For the record, I disagree with the attempt to characterize ICANN as a
> "public governance" body, for reasons substantially the same as those
> already expressed.  In the interests of bandwidth (mine and yours) and
> avoiding rehashing, I have added my thoughts to the matter.  In any event,
> for the reasons stated above, it is irrelevant to the transparency question
> to which this thread is devoted.
>
> Greg
>
> On Tue, Aug 16, 2016 at 9:43 AM, parminder <parminder at itforchange.net>
> wrote:
>
>> To these important posers I may add, is ICANN considering making it clear
>> to the vendors at the contracting stage itself that it has strong
>> transparency obligations and would be bound by them (as governments
>> typically do, which is why this discussion went into whether ICANN's
>> functions are of a 'public governance' nature). parminder
>>
>> On Monday 15 August 2016 08:38 PM, Schaefer, Brett wrote:
>>
>> Kavouss,
>>
>>
>>
>> Thank you for re-raising this issue, which appears to have been lost.
>>
>>
>>
>> Xavier, I also asked for additional clarifications that, I think, need to
>> be answered to inform he work of the Transparency Working Group in WS2.
>> Specifically, in your response, you said that “ICANN enters into
>> confidentiality obligations as a result of bilateral negotiations with
>> vendors” and that they prevent ICANN from publicly disclosing further
>> details than those provided in your e-mail.
>>
>>
>>
>>    - Would this confidentiality obligation prevent disclosure through
>>    the DIDP process?
>>
>>
>>
>>    - Would this confidentiality obligation prevent individual Directors
>>    from obtaining this information through their Right of Inspection?
>>
>>
>>
>>    - Would this confidentiality obligation prevent an individual
>>    Decisional Participant from obtaining this information if they requested it
>>    under their Right of Inspection of  ICANN accounting books and records
>>    pursuant to the provisions of Section 6333 of the CCC?
>>
>>
>>
>>    - Would this confidentiality obligation prevent the Empowered
>>    Community from obtaining the information through its right to launch a
>>    third-party, independent investigation if three Decisional Participants
>>    determine that there is a credible allegation that ICANN has committed
>>    fraud or that there has been a gross mismanagement of ICANN’s resources?
>>
>>
>>
>> Finally, I did not see where you clarified whether ICANN engaged vendors
>> to perform similar tasks – “lobbying” or educational/engagement – that may
>> not have been captured by the Congressional database, such as at the state
>> level in the U.S. (particularly California), the U.S. Executive Branch, or
>> in non-US countries.
>>
>>
>>
>> Best,
>>
>>
>>
>> Brett
>>
>>
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Kavouss
>> Arasteh
>> *Sent:* Monday, August 15, 2016 10:36 AM
>> *To:* Xavier J. Calvez
>> *Cc:* accountability-cross-community at icann.org
>> *Subject:* Re: [CCWG-ACCT] [community-finance] IANA Stewardship
>> Transition - Project Expenses - FY16 Q3 update
>>
>>
>>
>> Dear Xavier
>>
>> I have sent you the following question to which I have not received any
>> reply
>>
>> Perhaps you have been very busy and overlooked my questions
>>
>> I still awaiting for clarifications
>>
>> Regards
>>
>> KAVOUSS
>>
>> Copy of questions raised many weeks ago
>>
>> Dear Xavier
>>
>> Thank you for all info.
>>
>> Pls clarify the following
>>
>> 1.What is prfessional advice :;this advice is given to whom ,on what
>> subject and why is needed
>>
>> 2. what is lobbing here. who lobbies for whom and on what and the need
>> for such lobbies
>>
>> 3 Who checks and confirm  the legal costs by three legal entities, who
>> decide that there was a need for such legal advice and who checks and
>> control ther tme spent..Many of these advice were repeatation of previous
>> adfvices and just cut and p[aste from one advice to others .Please review
>> all advices given from the begining of 2015 till now
>>
>> We neeed all these detailed info .
>>
>> Regards
>>
>> Kavouss
>>
>>
>>
>> 2016-08-15 16:25 GMT+02:00 avri doria <avri at apc.org>:
>>
>>
>>
>> On 15-Aug-16 06:43, parminder wrote:
>> > I just said that an Antigua based betting company will be ill-advised
>> > to try to take up a closed gTLD in its name and conduct its business
>> > under it, because it is liable to be seized whenever US authorities
>> > want to do so (by their jurisdiction control over ICANN) . Same is
>> > true of a drug company, say from India, planning global e-com trade of
>> > generic drugs. It will also be ill-advised to risk a closed gTLD in
>> > its name to do such global business, for the same reason.
>>
>> I thought that this has to do with the jurisdiction of the registry and
>> the rregistrar itself.  And while it may cause concern because there are
>> not as many registries and registrars in non US jurisdictions, there are
>> some and could be more in time. It may also mean that greater efforts
>> should be taken to inform people of the jurisdiction their registration
>> is under and whose laws they are subject to, but I do not see how the
>> location of ICANN main office or place of incorproation affects this
>> issue.
>>
>> In any case aren't the issues relatiing to the jurisdiction of
>> registries and registrars  among the ones being discussed in the Juris
>> sub group?
>>
>> But the conversation has been quite far ranging so could well be missing
>> the point of the disagreement.
>>
>> avri
>>
>>
>> ---
>> This email has been checked for viruses by Avast antivirus software.
>> https://www.avast.com/antivirus
>>
>>
>> ------------------------------
>> 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
>>
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