[Ws2-transparency] Revised Transparency Doc

[Michael Karanicolas]

Hi,

Thanks very much for your responses back - which are very much
appreciated, and were very useful for today's working group call. I am
hoping that there might be another opportunity to chat, just very
briefly, regarding the Recommendation related to attorney-client
privilege.

When we discussed this previously, my understanding of ICANN legal's
position was that there was discomfort over any kind of broad or
presumptive waiver of attorney-client privilege. If my notes are
correct, you mentioned that ICANN legal already strives to release
this information when they feel it is possible to do so without
harming ICANN's interests, but that you did not want to see language
that would tie your hands, or nullify the ability to make a contextual
determination of whether disclosure was appropriate. This
understanding is what informed the redrafted language I sent over on
Sept. 1, which was intended to clarify that the decision was a
contextual one, to be assessed on a case-by-case basis, with clear
guidelines regarding when privilege should be applied.

I think that the main concern over the latest proposed revisions is
that these guidelines are removed, which essentially leaves it as a
wholly discretionary decision, based on indeterminate factors. We
really want to arrive at language that's responsive to your concerns,
and the interests that need to be protected through confidentiality.
But, as redrafted, this recommendation wouldn't really provide
anything in terms of progress - either in enhancing transparency or in
providing clarification over how the decision is made. My hope is
that, with another brief conversation, we can tweak the guidelines so
that they appropriately cover your concerns, and do not need to be
deleted entirely. Alternately, if you feel that more clarification is
needed to ensure that these are guidelines for a contextual
determination, that could be another option.

There was also some discussion today around your edit that the
determination should be made by ICANN rather than ICANN legal, with
some pointing out that ICANN legal will have the specific expertise on
these matters, though others mentioned that attorney-client privilege
is for the protection of the client, and waived at the discretion of
the client, meaning that the shift over to ICANN was appropriate.

There are no objections to your suggested edits for Recommendation 2.
Regarding Recommendation 16, we generally have no issue with the
edits, but there was a slight modification made between when I sent
the draft over, as reflected in the attached. I don't expect that will
change the calculus on your end, but wanted to send it over anyway for
the sake of clarity.

Please let me know if there is any possibility to chat, preferably in
the next week, which would allow us to submit these materials in time
for ICANN 60.

Best wishes,

Michael Karanicolas

On Wed, Oct 4, 2017 at 3:08 PM, Samantha Eisner
<Samantha.Eisner at icann.org> wrote:
> Dear Michael and the Transparency team,
>
> Attached please find ICANN Legal¹s proposed updates to the three
> recommendations that were the subject of our discussion with the
> rapporteur.
>
> Thanks,
>
> Sam
> ‹
> Samantha Eisner
> Deputy General Counsel, ICANN
> 12025 Waterfront Drive, Suite 300
> Los Angeles, California 90094
> USA
> Direct Dial: +1 310 578 8631
>
>
>
>
>
> On 10/4/17, 10:34 AM, "ws2-transparency-bounces at icann.org on behalf of
> Michael Karanicolas" <ws2-transparency-bounces at icann.org on behalf of
> michael at law-democracy.org> wrote:
>
>>Hi all,
>>
>>Just writing to remind of today's call, which will be at 1900 UTC, to
>>discuss the attached draft recommendations.
>>
>>Best,
>>
>>Michael
>>
>>On Thu, Sep 28, 2017 at 10:03 AM, Michael Karanicolas
>><michael at law-democracy.org> wrote:
>>> Hi all,
>>>
>>> I am attaching a revised transparency document, for discussion at next
>>> week's meeting, which has the revised language incorporated into the
>>> recommendations. All changes from the previous draft are tracked.
>>>
>>> Still no word back from ICANN legal regarding their thoughts on the
>>> re-worked language - but hopefully we'll hear back before the meeting
>>> on Wednesday.
>>>
>>> Best,
>>>
>>> Michael
>
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