[Ws2-transparency] WS2 Transparency Recommendations

[Michael Karanicolas]

Hi all,

Hope everyone is doing well. I am just writing to follow up on the
NCPH Intersessional, which took place last week. Included in the
program was a session on transparency at ICANN legal. If you'll
recall, when the recommendations were presented in Abu Dhabi, there
was a fairly strong reaction among the audience that we didn't chart a
stronger avenue forward for improving transparency at ICANN legal,
which resulted in the drafting of a minority statement by Robin Gross
of the NCSG and Malcolm Hutty of the ISPCP. The minority statement is
attached.

At last week's Intersessional, both the NCSG and the CSG leadership
came out very strongly in support of the minority statement, and asked
that we consider including these recommendations in the main report.
Having taken another look at the minority statement, which is
attached, I also support this, since it seems to offer more clarity
without crossing any of the areas that people objected to in previous
drafts.

There are two main strands to the recommendations in the minority
statement. The first is to initiate a public consultation on
principles for how attorney-client privilege should be applied in
ICANN's context. This basically just mirrors our existing language in
Recommendation 15, but states in a clearer way, so that shouldn't be
too controversial, I don't think.

The second strand has three parts. First, it says that the mere fact
that attorney-client privilege is available will not be determinative
in whether it should be applied. Again - I don't see this as being too
controversial, since it doesn't do anything to narrow the privilege,
and is even consistent with ICANN legal's own proposal for the
recommendation (which focused on committing to review materials before
privilege is invoked). The second strand says that the mere fact that
disclosure might assist a claimant or potential claimant in a case
pursuant to the Independent Review Process shall not, of itself, be
considered sufficient reason to assert attorney-client privilege. This
is broadly in line with our general approach of looking for specific
harms before information is classified, but it also asserts that
fostering participation in an IRP should not be considered a "harm".
We never discussed IRPs specifically, I don't think - but hopefully
this is also not controversial. The third strand refers back to the
“Purposes of the IRP”, as set out in Section 4.3 of the Bylaws, to
further support the idea that IRP connected material may be disclosed.

I realize it is very late in the process, but I was hoping to find a
way to address the dissatisfaction that was expressed when these
recommendations were addressed publicly, and hopefully to bring the
supporters of the minority statement on board. Please let me know if
you have any thoughts on this, or objections.

Best,

Michael Karanicolas
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