[Ws2-transparency] WS2 Transparency Recommendations

Tue Feb 6 18:16:45 UTC 2018

I support these recommendations, and also would add a firm requirement for
ICANN to explain in writing and in detail each invocation of privilege --
how they came to the conclusion that privilege was properly invoked in each
instance.  This would go well beyond a traditional "privilege log" in U.S.
litigation.  The Board has already ordered staff to provide much more
detail in denying DIDP requests, because an IRP Panel recommended that.
But I am not aware that Staff has really changed its practices since that
resolution, nor even updated its DIDP response documentation to reflect
that it must provide better disclosure.  This group can and should push
ICANN further not only towards much broader disclosure of documents, but
also towards much better disclosure of reasoning for withholding any
documents.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Tue, Feb 6, 2018 at 9:10 AM, Michael Karanicolas <mkaranicolas at gmail.com>
wrote:

> Hi,
>
> Thanks very much for your quick response. I think our final deadline
> is March 2, so next week should be fine for discussing, if that is
> possible. For the sake of clarity, I think that the proposed
> recommendations can be understood as:
>
> 1. ICANN should, as a matter of urgency, take steps to identify and
> apply principles according to which attorney- client privilege shall
> be waived in the interests of transparency, and/or the availability of
> attorney-client privilege disregarded when contemplating making a
> voluntary disclosure. This process should involve further public
> consultation.
> 2. Recalling the commitment to transparency in Article 3 Section 3.1
> of the Bylaws, the mere fact that attorney-client privilege is
> available to ICANN in respect of a particular contemplated disclosure
> shall not be considered, of itself, reason to assert that privilege or
> otherwise withhold disclosure.
> 3. 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 where that privilege is available.
> 4. When considering whether to make disclosure in connection the IRP,
> ICANN shall have regard to the “Purposes of the IRP”, as set out in
> Section 4.3 of the Bylaws, and shall consider those purposes as
> amongst ICANN’s objectives.
>
> I've written back to ICANN legal soliciting their comments as well,
> and asking for them to come back by COB Feb 13.
>
> Best,
>
> Michael
>
>
> On Mon, Feb 5, 2018 at 4:57 PM, McAuley, David via Ws2-transparency
> <ws2-transparency at icann.org> wrote:
> > Hi Michael,
> >
> > On a quick scan, I imagine I will have comments on this.
> >
> > However, I have a completely booked-up schedule this week so write now
> to say that intervening silence should not be taken as agreement.
> >
> > In the meantime, however, it would be nice to hear from ICANN Legal on
> this if they plan on commenting.
> >
> > Best regards,
> > David
> >
> > David McAuley
> > Sr International Policy & Business Development Manager
> > Verisign Inc.
> > 703-948-4154
> >
> > -----Original Message-----
> > From: Ws2-transparency [mailto:ws2-transparency-bounces at icann.org] On
> Behalf Of Michael Karanicolas
> > Sent: Monday, February 05, 2018 12:43 PM
> > To: ws2-transparency at icann.org
> > Subject: [EXTERNAL] [Ws2-transparency] WS2 Transparency Recommendations
> >
> > 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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> > Ws2-transparency at icann.org
> > https://mm.icann.org/mailman/listinfo/ws2-transparency
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