[CPWG] [ECAdmin] Correspondence

Greg Shatan greg at isoc-ny.org
Wed Feb 5 23:24:07 UTC 2020


Olivier, I don’t know whether a DIDP would be the appropriate vehicle to
get the kind of information requested in the ASO letter.

Roberto, thanks for clarifying your earlier thoughts.  I think it is far
too early to say that we have failed with regard to the EC.  This was not
even an exercise of an EC power, nor was it an exercise by the EC.  We have
not even begun to see what the EC is capable of.

As I noted before, the Inspection Right was intended to resolve a specific
concern — to close a particular “gap”.  Specifically, each Member of a
member-based California non-profit has a statutory right to inspect certain
documents. The Decisional Participants are not Members (and ICANN is not a
member-based entity), therefore they could not take advantage of this
statutory right to inspect accounting books and records (which
(generically) are actually not public)and minutes of Board and Board
Committee meetings (which ICANN does publicize at Board level but I’m not
sure about Board Committees).

The Inspection Right closed that gap, which was all that it was intended to
do.  Each Decisional Participant now has the same right as a Member would,
if ICANN was a member-based organization.  Therefore, it is a success.  The
failure, unfortunately, was in the ASO’s request. (This is not meant as a
criticism; this is a learning experience for all of us.)

What this indicates to me is that the community and its parts need to be
smart, well-informed and careful in how we exercise these rights, or we
will be frustrated and disappointed, with only ourselves to blame.

Roberto, you refer now and before to a “court intervention” to “force
disclosure by ICANN about discussions hidden from the community.”  What
court intervention are you envisioning?  What would the cause of action be
and who would have standing to bring it?  A court can’t force such
disclosure without a specific legal basis in a case brought by a party with
standing to do so (and that’s largely a good thing, since a state with
broad, self-executing powers sounds like a police state...).  So, I don’t
believe there is an option of going to a US court to force disclosure by
ICANN of the “hidden” materials, at least not at this point.

You will recall that we actually fought for the right to go to court to
enforce IRP results against ICANN.  Before, this was unavailable.  So,
depending on the circumstances, taking ICANN to court is also a successful
outcome of the Accountability work, and not a failure of the work we did.

Best regards,

Greg


On Wed, Feb 5, 2020 at 5:46 PM Roberto Gaetano <roberto_gaetano at hotmail.com>
wrote:

> 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> 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> wrote:
>
>>
>>
>> > On Feb 5, 2020, at 9:29 PM, Roberto Gaetano <
>> 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
> President, ISOC-NY
> *"The Internet is for everyone"*
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-- 
-------------------------------------
Greg Shatan
greg at isoc-ny.org
President, ISOC-NY
*"The Internet is for everyone"*
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