[CPWG] [ECAdmin] Correspondence

Thu Feb 6 03:51:56 UTC 2020

Agree with Greg on this. Of course, the empowered community has not yet acted and we have other tools in our arsenal. The NCSG make a strong case for a puic airing of grievances and we should consider supporting them and trying to get a non-registrant end user seat at the table.

Finally, we need to determine if there is any consensus among the EP to overturn a board decision we don't like. If there is, we have muscle to bring to bear.

Jonathan Zuck
Executive Director
Innovators Network Foundation
www.Innovatorsnetwork.org<http://www.Innovatorsnetwork.org>

________________________________
From: CPWG <cpwg-bounces at icann.org> on behalf of Greg Shatan <greg at isoc-ny.org>
Sent: Wednesday, February 5, 2020 3:24:07 PM
To: Roberto Gaetano <roberto_gaetano at hotmail.com>
Cc: CPWG <cpwg at icann.org>
Subject: Re: [CPWG] [ECAdmin] Correspondence

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<mailto: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<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
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Greg Shatan
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President, ISOC-NY
"The Internet is for everyone"
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