[At-Large] Fwd: Re: [CCWG-ACCT] Transparency recap (Was: Contribution on Transparency Reforms for CCWG)

Karl Auerbach karl at cavebear.com
Fri Oct 30 18:23:14 UTC 2015

As the one and only person who has ever really exercised a legal power 
to inspect and copy ICANN's books and properties I find this discussion 

There is no doubt that ICANN has lacked both transparency and 
accountability in the past.

ICANN was so obstinate and wrongheaded that I had to go to court to 
obtain a writ of mandate in order to exercise a right that is 
unambiguously given to sitting board members (such as I was) to inspect 
and copy the corporate records and properties.  ICANN, of course, lost 
that legal action and a writ was issued that ordered them to open their 
general ledgers and other materials to me (to which they promptly complied.)

And I don't think it is a reach to conclude that that situation has not 
changed much, that ICANN currently lacks adequate transparency and 

Some are suggesting that some sort of right of access be written into 
ICANN's bylaws.  I find that to be a very weak, and ultimately not very 
useful thing.  The reason I say this is that a right of limited access 
written into a corporate by-law is far weaker than a broad right of 
total access that is written into the laws of corporations of many (if 
not all) jurisdictions.  And unless one has the hammer of broad 
statutory access the corporation can be very evasive and dilatory.

Broad access is necessary; one can not have a limited inspection - For 
example when I looked at ICANN's general ledgers I found items that 
needed to be backed up by supporting documentation.  Had I not had the 
power to require the production of that material I had no basis to give 
credence to the ledger entries or to understand whether they were being 
properly made.

Similarly, when I finally was able to exercise my statutory rights I 
discovered that ICANN's relationship with its employees and contractors 
was flawed by the absence of materials and procedures that are routinely 
practiced elsewhere.  It would be very hard to write that kind of access 
into a narrowly constricted right of access by some "member"; that kind 
of transparency and accountability requires the kind of broad, 
unconstrained, access that is routinely granted to (and oft not well 
practiced by) members of boards of directors.

Any attempt to make ICANN more accountable ought to build on the 
hundreds of years of experience in the operation and control of the kind 
of organizations we put under the general name of "corporations".

That experience tells us that the primary vehicle of accountability and 
transparency is a good board of directors who take their 
responsibilities seriously and make truly independent and informed - 
especially informed - decisions to act or not to act.  ICANN does not 
have such a board and seems, via its nominative process, to be expressly 
and systemically designed to avoid having such a board.

In addition, experience tells us that such a board must feel the 
pressure of those to whom the corporation is intended to benefit. In 
commercial corporations that is the stockholders.  In public benefit 
corporations, such as ICANN, that is the public.  "Feeling the pressure" 
means much more than that the corporation and board merely listening to 
comments.  "Feeling the pressure" means something stronger - such things 
as are enumerated in the California laws that describe membership 
rights, as ICANN conveniently enumerated back in 1999: 

Much has been said about membership.  Under the laws of California that 
govern ICANN a public-benefit non-profit corporation a body of members 
is required if there is an election for board of directors. (And there 
is no doubt that ICANN had such an election in year 2000 even though 
they tried to avoid that fact by calling it a "selection".)

A non-membership public-benefit corporation is usually used for things 
like theatre companies our other endeavors that are largely the 
extension of a single, often artistic, mind, such as an artistic director.

But when the corporation is really an aggregation of minds, opinions, 
and beneficiaries - as ICANN is to a very high degree - a non-membership 
structure is simply not appropriate.

But membership is a word that envisions more than one member.  My own 
sense is that an attempt to structure an ICANN membership with exactly 
one member would fail.  Judges are not stupid, they understand pretense 
and are both willing to, and empowered to, perceive actual substance 
over purported form.  Even worse, they might construe ICANN as a mere 
alter ego of that "member" and decide that ICANN's corporate form is not 

I wear multiple hats - on one hand I am a techie working with internet 
protocols.  On the other hand, I am a California lawyer; I sit on 
corporate boards; I create, own, and sell corporations.  The rules and 
structures of corporations, if honored in both form and spirit, can 
result in open, transparent, and accountable public-benefit corporations.

Corporate forms - the rules and structures that the law dictates - are 
not ivory tower fantasies.  Rather they are the result of centuries of 
practical experience in which people with contesting and competing 
interests have come together to try to combine their efforts towards 
some goal.  The machinery of corporations was not created in some ivory 
tower, it was created in the very real world.

But when those rules and structures are not honored or the corporation 
thinks that it can create a system that somehow is better than what has 
been honed into the law through centuries of practical experience, then 
the result is most likely to be an amateur construct, flawed, weak, and 
probably less accountable and transparent than hoped.

My point here is that there is a lot of wishful thinking going on about 
ICANN and accountability and a lot of hand waiving about what the law is 
or is not.  And rather than trying to impose real transparency and 
accountability upon ICANN by wishful inventions we ought to use the well 
tried methods that are available through well established legal forms of 
corporate structure and operation.

And in this case, that method would be a board that is wholly chosen by 
and seated by, a membership composed the broad community of internet 
users with all of the kinds of powers that are typically granted to members.


On 10/30/15 7:48 AM, parminder wrote:
> After opposing greater accountability of ICANN through a membership 
> based model, ALAC leadership seems also eager to *not* support 
> increased transparency.... (Now, please dont cite technical reasons, 
> people normally employ 'technical reasons' and 'facts' in pursuance of 
> what they want accomplished and not against it)
> And ALAC is supposed to be the representative of the 'outsiders'.....A 
> really strange world, i'd say!
> parminder
> -------- Forwarded Message --------
> Subject: 	Re: [CCWG-ACCT] Transparency recap (Was: Contribution on 
> Transparency Reforms for CCWG)
> Date: 	Fri, 30 Oct 2015 14:17:44 +0000
> From: 	Alan Greenberg <alan.greenberg at mcgill.ca>
> To: 	Chris Disspain <ceo at auda.org.au>, Schaefer, Brett 
> <Brett.Schaefer at heritage.org>
> CC: 	accountability-cross-community at icann.org 
> <accountability-cross-community at icann.org>
> Transparency is needed, but the CCWG identified this as a WS2 issue. 
> Yes, when we were talking about membership, some of this automatically 
> would be provided, but it was not de facto a WS1 issue. To add it now 
> is mission creap.
> -- 
> Sent from my mobile. Please excuse brevity and typos.
> On October 30, 2015 11:34:29 AM GMT+00:00, Chris Disspain 
> <ceo at auda.org.au> wrote:
>     I disagree. I do not believe there is yet consensus.
>     I am not in favour of any ‘rights’ other than the enforcement
>     rights already agreed being given to the designator. I have no
>     issue with the right of inspection being given to the SOs and ACs
>     pursuant to an agreed level of consensus.
>     Cheers,
>     Chris Disspain|Chief Executive Officer
>     .au Domain Administration Ltd
>     T: +61 3 8341 4111|F: +61 3 8341 4112
>     E:ceo at auda.org.au <mailto:ceo at auda.org.au> |W:www.auda.org.au
>     <http://www.auda.org.au/>
>     auDA – Australia’s Domain Name Administrator
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>>     On 30 Oct 2015, at 22:25 , Schaefer, Brett
>>     <Brett.Schaefer at heritage.org
>>     <mailto:Brett.Schaefer at heritage.org>> wrote:
>>     Matthieu,
>>     I may be wrong, but based on the comments on the list and in
>>     Dublin that there is broad agreement, I would even say consensus,
>>     that the right to inspect needs to be granted to the designator.
>>     The discussion recently has focused on how much of the other
>>     transparency provisions to bring forward to WS1. I and others
>>     think a substantial amount, others disagree. If a compromise or
>>     centrist position is being sought, I suggest it that it focus on
>>     these items of dispute.
>>     Thanks,
>>     Brett
>>     ________________________________
>>     Brett Schaefer
>>     Jay Kingham Senior Research Fellow in International Regulatory
>>     Affairs
>>     Margaret Thatcher Center for Freedom Davis Institute for National
>>     Security and Foreign Policy
>>     The Heritage Foundation
>>     214 Massachusetts Avenue, NE
>>     Washington, DC 20002
>>     202-608-6097
>>     heritage.org <http://heritage.org><http://heritage.org/>
>>     On Oct 30, 2015, at 5:24 AM, Edward Morris <egmorris1 at toast.net
>>     <mailto:egmorris1 at toast.net><mailto:egmorris1 at toast.net>> wrote:
>>     Mathieu,
>>     Thank you very much for this post. I  want to succinctly thank
>>     the Chairs for their exemplary leadership on this issue, express
>>     my support for their rational, considered, centered and measur ed
>>     approach to transparency and inspection issues, and express my
>>     full support for the approach indicated, with work beyond the
>>     transposing of certain provisions from the old reference model
>>     into into the new reference model to be tackled in work stream 2.
>>     It is an approach between the two extremes recently debated on
>>     list and as a centrist in most things in life find it a
>>     reasonable way forward that should provide us with the best
>>     opportunity to get this done right. Thanks again.
>>     Best,
>>     Ed Morris
>>     Sent from my iPhone
>>     On Oct 30, 2015, at 8:15 AM, Mathieu Weill
>>     <mathieu.weill at afnic.fr
>>     <mailto:mathieu.weill at afnic.fr><mailto:mathieu.weill at afnic.fr>>
>>     wrote:
>>     Dear Colleagues,
>>     First of all many thanks to all of you wh o have been working
>>     hard on this issue. We are well aware of your efforts to find an
>>     approach that would be acceptable to all on this question.
>>     Regarding transparency discussions, I would like to remind
>>     everyone of the content and conclusions of our discussions on
>>     Transparency in the Sole Designator model while we were in Dublin.
>>     -          Our lawyers have confirmed that the same level of
>>     transparency could be achieved in the Sole Designator model as
>>     with the Sole Member, by adding a specific provision to the
>>     Bylaws enabling the Sole Designator to inspect Ican’s
>>     accounting books and records.
>>     -          In response to a concern raised by Sam Eisner about
>>     public disclosure of such documents, we discussed how we could
>>     use the same type of provision that we had agreed on for the AoC
>>     reviews as a safeguard (see below the relevant extract from the
>>     AoC section, provided by Steve del Bianco)
>>     -          There was a debate about whether or not extra
>>     provisions for transparency were needed in Work stream 1,
>>     considering that we have agreement that the topic is on the WS2
>>     agenda. There was no formal conclusion.
>>     Thomas did conclude by saying “So that’s one action item for
>>     our group to set up a subteam to define the exact language and
>>     extent to which a transparency is required.”
>>     In terms of way forward, given the input we have received, I
>>     believe the question is whether transparency provisions, beyond
>>     the records inspection rights, fit with our agreed definition of
>>     Work stream 1, and whether the level of consensus on the extra
>>     provisions at this stage is sufficient.
>>     I would note that, with the group’s input, our WS2 initiative
>>     would already be well advanced. It might be possible to launch it
>>     very soon after we have submitted our WS1 recommendations if that
>>     is the path we take.
>>     Best,
>>     Mathieu
>>     For your reference :
>>     Full transcript -->
>>     https://community.icann.org/download/attachments/56143884/Transcript%20CCWG%20ACCT%20Working%20Session%202_21%20October.pdf?version=1&modificationDate=1445525810000&api=v2
>>     Slide-deck -->
>>     https://community.icann.org/download/attachments/56143884/CCWG-Accountability%20Working%20Session%20II%20%281%29-1.pdf?version=1&modificationDate=1445444965000&api=v2
>>     page 75 of AoC reviews as part of WS1.
>>     Confidential Disclosure to Review Teams:
>>     To facilitate transparency and openness regarding ICANN's
>>     deliberations and operations, the Review Teams, or a subset
>>     thereof, shall have access to ICANN internal information and
>>     documents. If ICANN refuses to reveal documents or information
>>     requested by the Review Team, ICANN must provide a justification
>>     to the Review Team. If the Review Team is not satisfied with
>>     ICANN’s justification, it can appeal to the Ombudsman and/or
>>     the ICANN Board for a ruling on the disclosure request.
>>     For documents and information that ICANN does disclose to the
>>     Review Team, ICANN may designate certain documents and
>>     information as not for disclosur e by the Review Team, either in
>>     its report or otherwise. If the Review Team is not satisfied
>>     with ICANN’s designation of non-disclosable documents or
>>     information, it can appeal to the Ombudsman and/or the ICANN
>>     Board for a ruling on the non-disclosure designation.
>>     A confidential disclosure framework shall be published by ICANN.
>>     The confidential disclosure framework shall describe the process
>>     by which documents and information are classified, including a
>>     description of the levels of classification that documents or
>>     information may be subject to, and the classes of persons who may
>>     access such documents and information.
>>     The confidential disclosure framework shall describe the process
>>     by which a Review Team may request access to documents and
>>     information that are designated as classified or restricted access.
>>     The confidential disclosure framework shall also describe the
>>     provisions of any non-discl osure agreement that members of a
>>     Review Team may be asked to sign.
>>     The confidential disclosure framework must provide a mechanism to
>>     escalate and/or appeal the refusal to release documents and
>>     information to duly recognized Review Teams.
>>     De : accountability-cross-community-bounces at icann.org
>>     <mailto:accountability-cross-community-bounces at icann.org><mailto:accountability-cross-community-bounces at icann.org>
>>     [mailto:accountability-cross-community-bounces at icann.org] De la
>>     part de Kieren McCarthy
>>     Envoyé : jeudi 29 octobre 2015 15:58
>>     À : Padmini
>>     Cc : accountability-cross-community at icann.org
>>     <mailto:accountability-cross-community at icann.org><mailto:accountability-cross-community at icann.org>
>>     Objet : Re: [CCWG-ACCT] Contribution on Transparency Reforms for CCWG
>>     I have to agree with Padmini on this one re: DIDP and being "able
>>     to refer the requestor to documents already publicly available".
>>     The information provided is often tangential to what has actually
>>     been asked for. In quite a few cases it is so far removed from
>>     the query that it is almost obnoxious.
>>     I don't know why Board members have such a blind spot about how
>>     the staff behaves to those outside the corporation.
>>     And I'm still waiting to hear a Board member - any Board member -
>>     announce that they have decided to look into the staff's
>>     bylaw-breaking behavior in the .africa application.
>>     If I was on the Board and I heard that th e entire process was
>>     being jeopardized by staff wrongly interfering in the process
>>     (and then lying about doing so), I'd make sure the community knew
>>     I was doing my job and insist on some kind of internal review of
>>     what happened and what could be done to make sure it didn't
>>     happen again.
>>     But instead we get silence and fantasy responses like these ones
>>     from Bruce about how the DIDP works and the effectiveness of
>>     ICANN's financial reporting systems.
>>     Kieren
>>     On Thu, Oct 29, 2015 at 5:41 AM, Padmini <pdmnbaruah at gmail.com
>>     <mailto:pdmnbaruah at gmail.com><mailto:pdmnbaruah at gmail.com>> wrote:
>>     Dear Bruce,
>>     As someone who has spent some time combing through the different
>>     responses that ICANN files to the various DIDP requests, my
>>     findings are slightly different, and have been posted earlier.
>>     While ICANN does link one to an innumerable array of documents
>>     that are publicly available, many times, there is little or no
>>     connection between the information one seeks and the publicly
>>     available documents that are provided. For instance, I have asked
>>     a few questions on registrar/registry audits, specifically
>>     seeking individual contracted party audit reports in cases where
>>     there have been breaches or discrepancies. However, the response
>>     contains a large number of links explaining ICANN's
>>     three-year-audit process in great detail, and at the end has a
>>     rejection of my actual request on the basis of certain of their
>>     extremely vast and broad grounds for non-disclosure. I like to
>>     refer to this as ICANN's tendency towards documentary obfuscation
>>     where they aren't actually giving you the information that you
>>     need, but are drowning you in documents anyway.
>>     That 66 is a figure that we might need to scrutinise closer in
>>     terms of how effective those disclosures actually have been.
>>     Warm Regards
>>     Padmini
>>     Programme Associate, Internet Governance
>>     Centre for Internet and Society, Bangalore, India
>>     Padmini Baruah
>>     V Year, B.A.LL.B. (Hons.)
>>     NLSIU, Bangalore
>>     On Thu, Oct 29, 2015 at 12:16 PM, Bruce Tonkin
>>     <Bruce.Tonkin at melbourneit.com.au
>>     <mailto:Bruce.Tonkin at melbourneit.com.au><mailto:Bruce.Tonkin at melbourneit.com.au>>
>>     wrote:
>>     Hello Greg,
>>>>     6333.  The accounting books and records and minutes of proceedings
>>     of the members and the board and committees of the board shall be
>>     open to inspection upon the written dem and on the corporation of any
>>     member at any reasonable time, for a purpose reasonably related to
>>     such person's interests as a member.
>>     The minutes are basically published today.    The only minutes
>>     apparently that are not posted are compensation committee
>>     minutes – but even then we could at least note the items
>>     discussed without necessarily disclosing some personal information.
>>     With regard to financials– we are already moving towards the
>>     same standards as publicly listed companies in the USA.   We now
>>     provide quarterly financial reporting, and a quarterly call where
>>     the community can question the CEO and the CFO on the income and
>>     expenditure.   It would not be normal to provide people with
>>     access to the raw accounting system (in this case Great
>>     Plains) – which would include information on payments to all
>>     staff etc.
>>     We do use an ex ternal auditor to validate our financials and
>>     processes once per year.
>>     If there is a community  concern about a particular financial
>>     matter (e.g concern about whether procurement policies were being
>>     followed) – then I think it would be more appropriate if the
>>     single legal entity that represents the community powers has the
>>     right to appoint an external auditor to validate any particular
>>     process or numbers and report back to the community.      Audit
>>     firms have the appropriate skills to analyse financial accounting
>>     records and also have appropriate procedures in place for
>>     confidentiality.
>>     I think we should be focussing on improving the processes we
>>     already have.   I advocated moving to quarterly financial
>>     reporting, and I have certainly been a strong advocate of making
>>     things as public as possible, and welcome suggestions for
>>     improving our processes.
>>     Regards ,
>>     Bruce Tonkin
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