[CPWG] [ECAdmin] Correspondence

Wed Feb 5 22:46:23 UTC 2020

Hi Greg.
I am not sure if you were referring to me as one of the people who have responded.
Indeed, I was not on the call, unfortunately, I had sent my advance apologies to Staff when I realised I had a conflict.
Just to clarify my thoughts, I do not understand the legalities of the matter but it was not my intention to criticize JJ’s reply - during my long years on the ICANN Board I have appreciated the skills of ICANN’s GC and the care in explaining his legal reasoning to make it clear even to legally challenged people like myself.

All what I was saying is that if we were planning to have the “Empowered Community” empowered to the extent that it would have real powers to exert oversight over ICANN we have failed.
As a layman, I consider that when things get to the point of making a court intervention necessary we give a sign that the ecosystem is unable of dealing with the matter internally - and therefore it needs an external intervention. I am not questioning at all the lawfulness of the external intervention, nor would I consider inaccurate the interpretation of a part of the ecosystem to refuse another part of the same ecosystem to get information that they would give anyway to third parties outside the ecosystem - it is just something that is suboptimal for the very functioning of the ecosystem itself.

I did not say it is “wrong” - but I do indeed consider it “bad”.

Cheers,
Roberto

On 05.02.2020, at 22:28, Greg Shatan <greg at isoc-ny.org<mailto:greg at isoc-ny.org>> wrote:

All,

This appears to be a completely accurate interpretation of the inspection right in Section 22.7 of the ICANN Bylaws.

I don’t want to say I told you so, but I brought up the overbreadth issue on our CPWG call just this morning.  I assume those who have responded were not on the call....   The other issues brought up in the letter are also well grounded in 22.7.

I’m very happy to criticize ICANN Org when they get it wrong (and they have, and I have, numerous times).  In this case, they got it right.  There was absolutely no reason to expect a different result.  Indeed, there’s no basis for a different result, like it or not.  (And I don’t particularly like it.). One might quibble about tone or phrasing, but the substance seems correct.

It may be fair to criticize the Inspection right, and it may be something to revisit as a potential change to the ICANN Bylaws.  One would have to go back to CCWG Accountability, look at the purpose for which it was created and decide whether It was fit for (that) purpose.  (My recollection is that the Inspection right was narrowly scoped, in order to give Decisional Participants the same rights granted to analogous stakeholders under California law.) But this is what it is.

I don’t see a different way to interpret 22.7, for better or worse.  Does anybody have another way to interpret it?  I’d be curious to know that, or more generally understand the criticisms of the ICANN letter as a response to Bylaws-defined request.

That said, the lack of transparency here is still painful and frustrating and wrong.  (This was just not the tool to get what was requested.)  Even though there has now been more disclosure than would be typical in a corporate transaction, that seems to have come largely as a result of community pressure, and still leaves a lot to be desired.

As for the Empowered Community, it’s unfortunate that there wasn’t more thought and analysis afforded to this request before it was made.  It doesn’t put the community in the best light.  I don’t think there’s any damage, but it’s the kind of error that shouldn’t be repeated if we want the Empowered Community to be taken seriously.  As Olivier pointed out on this morning’s call, this is the only EC-related right that can be exercised by a single Decisional Participant.  That helps see it more like a glitch, and not a blot on the Empowered Community as a whole.

Best regards,

Greg

On Wed, Feb 5, 2020 at 3:48 PM Bill Woodcock <woody at pch.net<mailto:woody at pch.net>> wrote:

> On Feb 5, 2020, at 9:29 PM, Roberto Gaetano <mail.roberto.gaetano at gmail.com<mailto:mail.roberto.gaetano at gmail.com>> wrote:
> The irony is that we have spent years of heavy work by the whole community to free ICANN up from the ties with US government and replace this supervision by a multi-stakeholder body just to find out that the only body that can force disclosure by ICANN about discussions hidden from the community is a US court.
>
> Sad, very sad.

Indeed, it is very sad and very frustrating.  The US government seems to have truly gotten over its desire to manage the Internet, and now we’ve got ICANN pulling them back in through this sort of childish behavior.

                                -Bill

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--
-------------------------------------
Greg Shatan
greg at isoc-ny.org<mailto:greg at isoc-ny.org>
President, ISOC-NY
"The Internet is for everyone"
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