Thank you Robin!

I have been waiting for WS2 all along. But at some point Becky Burr 
changed into WS1 and the very preliminary efforts on WS2 disappeared. 
Question: Who takes care of the official list of issues and interested 
members of WS2? I would like to speed up my participation on a few 
issues there.

Best regards

Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 15 Feb 2016, at 11:31, Robin Gross wrote:

> Thanks, team!  I’d like to add that we’ve got the issues of 
> transparency over board deliberations in Work Stream 2 (coming up!) as 
> well as transparency over ICANN’s lobbying of governments, and 
> review of the DIDP and whistle-blower policies.  So quite a few key 
> additional transparency issues are yet to be done, but are in our work 
> plan for the next year.  Anyone wanting to work on these transparency 
> issues in Work Stream 2 (or any of the issues in WS2) are welcome to 
> join the CCWG discussions and contribute to the formulation of these 
> key reforms in the coming months.
>
> Thanks!
> Robin
>
>> On Feb 15, 2016, at 6:38 AM, Schaefer, Brett 
>> <[log in to unmask]> wrote:
>>
>>
>> There is also the right of investigation (which I have to confess 
>> escaped me until I read through the latest drafts) to consider in 
>> this as a compliment to the right of inspection.
>>
>>
>>
>> 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/>
>>
>>
>> From: NCSG-Discuss [mailto:[log in to unmask] 
>> <mailto:[log in to unmask]>] On Behalf Of Edward Morris
>> Sent: Sunday, February 14, 2016 10:26 PM
>> To: [log in to unmask] 
>> <mailto:[log in to unmask]>
>> Subject: Re: What Karl Auerbach says about inspection rights at ICANN 
>> IS COMPLETELY WRONG
>>
>> Thanks Kathy.
>>
>> I also want to thank Farzi for her great work on Inspection and 
>> transparency. It's been sensational!
>>
>> We've had an absolutely fantastic team on the CCWG, led by our member 
>> Robin Gross. Brett, Paul, Matt, Milton, James, Avri, Farzi...all have 
>> made enormous contributions to the effort. It's pretty safe to say 
>> the NCSG has certainly punched above our weight on this important 
>> project. We didn't get everything we wanted but, in the words of the 
>> famous philosopher Mick Jagger, just maybe we got what we needed.
>>
>> On Inspection, though, we actually got everything we could have asked 
>> for and more and , yes, I think it is something the NCSG and the 
>> entire community will greatly benefit from in the years to come.
>>
>> Best,
>>
>> Ed
>>
>>
>>
>>
>>
>> Sent from my iPhone
>>
>> On 15 Feb 2016, at 03:13, Kathy Kleiman <[log in to unmask] 
>> <mailto:[log in to unmask]>> wrote:
>>
>> I would like to thank Ed and Farzi (and all in NCSG who worked for 
>> it) for the tremendous amount of work they have done on research, 
>> drafting, explaining, convincing and achieving an inspection right. 
>> Their work was done with the support of independent attorneys hired 
>> by ICANN, and reporting to CCWG. It was a huge effort, and I am 
>> tremendously appreciative and supportive of what they have achieved. 
>> It will make a big difference in the future...
>>
>> Best,
>> Kathy
>>
>> On 2/14/2016 8:14 PM, Edward Morris wrote:
>> Thanks Farzi.
>>
>> Actually, no. This post is so inaccurate it should never have 
>> disgraced the bandwidth of our members. After all, this is a members 
>> list and Karl Auerbach is not a member of the NCSG.
>>
>> That said, it's always nice to hear from Karl. Of course it would 
>> have been nice to hear from him in the fourteen months we've been 
>> hard at work obtaining Inspection rights for our members which are, 
>> as a package combined with other rights, in fact, far more extensive 
>> than that which ICANN gave Mr. Auerbach years ago. In the CCWG 
>> proposal we not only have managed to get Inspection rights for the 
>> GNSO and the other SOACs, rights mirrored on California Corporations 
>> Code §6333, but we have created a new and novel Investigation right 
>> which far surpasses anything Karl Auerbach ever obtained from ICANN 
>> through his inconclusive and confrontational  legal action.
>>
>> I'm happy to discuss any aspect of the CCWG proposal with our 
>> members. I'll briefly respond to Mr. Auerbach's incorrect and 
>> factually wrong assertions briefly, asking  folks to understand that 
>> this is Valentine's Day. I've (as have others) already donated 
>> Easter, Thanksgiving and my birthday to the CCWG,  and I am  doing my 
>> best to actually celebrate Valentines Day  this evening. It's my 
>> favourite holiday!  I will be happy to respond more in depth to any 
>> questions our members may have on this matter, or anything else 
>> related to the CCWG,  going forward. Feel free to ask.
>>
>>
>> Having had a rather intense experience exercising this right when I 
>> was on ICANN's board of directors I am surprised at the absence of 
>> some quite important matters.
>>
>> Mr. Auerbach presumes that the information contained in the public 
>> proposal is detailed and comprehensive. It is not, nor is it intended 
>> to be. The Supplemental Proposal which, in fact, has yet to be 
>> released to the public are mere guidelines our independent counsel 
>> will use to construct detailed Bylaws and implementation provisions..
>>
>>
>> First there is the question of what the person/body making the 
>> inspection can do with the information viewed.  Board members have 
>> powers regarding the inspected materials that are limited primarily 
>> by their fiduciary duties.  This is an important matter.
>>
>> As Mr. Auerbach may or may not be aware there are two types of 
>> Inspection rights under California law: that which is granted to 
>> members of the corporation, when said corporation is based upon a PBC 
>> membership model,  and that which is granted to members of the Board 
>> of Directors. The rights obtained by the community in the CCWG are 
>> those Inspections rights granted to members under the PBC membership 
>> corporation model. There are no fiduciary issues involved with this 
>> type of Inspection right which, of course, is why in the interest of 
>> transparency we were able to give the right to all SOACs in true 
>> bottom up fashion. The NCSG traditionally supports the bottom up 
>> multistakeholder model.
>>
>>
>> Second, there is much about corporate behaviour that is not 
>> documentary - for example, it is important that whether and how an 
>> organization actually practices what it has written.
>>
>> Kark is correct - that is why our CCWG Accountability work stream one 
>> proposal, the final version of which will be released Tuesday, 
>> contains in excess of two hundred pages of mission statements, 
>> accountability procedures and an entirely new bottom up governance 
>> model for ICANN which rests ultimate authority in the community. Karl 
>> may want to read the amazing work we have done over the past fourteen 
>> months, study the new and innovative governance regime (imperfect as 
>> it is) we have created before implying we haven't dealt with 
>> accountability issues. We have. In fact, we have a model that is 
>> unparalleled in American corporate history in the extent we empower 
>> community members.  Perfect: no. Do we deal with Karl's expressed 
>> concerns: absolutely. It's a shame Karl does not appear to have read 
>> our proposal before he commented on it.
>>
>>
>> Third, there is much that requires considerable analysis.  For 
>> financial data this tends to mean that data be available in 
>> electronic form so that it maybe examined and analysed with 
>> electronic tools.  Simple eyeball access is inadequate.
>>
>> That's not exactly a revelation, Karl. It is after all the year 2016. 
>> Our new and innovative Investigation Right allows the community to 
>> obtain, at ICANN's expense, an independent auditing firm to audit 
>> ICANN when there is a suspicion of malfeasance. The Investigation 
>> rights itself will give SOACs access to information in whatever form 
>> it exists. The right is based upon California Corporations Code 
>> §6333 which, itself, has been applied  in corporate California in a 
>> way that recognises technological advances in bookkeeping and record 
>> keeping. Mr. Auerbach's concerns are unfounded.
>>
>>
>> Fourth is the ability to bring in third party experts (such as 
>> forensic accountants, economists, and lawyers) to analyze the data.  
>> And with regard to third parties is the question of who controls 
>> maters of confidentiality and who has the authority over that third 
>> party.
>>
>>
>> As noted, the new and innovative Investigation right allows us to 
>> bring in, at ICANN's expense,  third parties to audit ICANN's books 
>> and records. The other issues identified by Mr. Auerbach have been 
>> identified and will be dealt with in an appropriate way in 
>> implantation documents and Bylaws provisions all based upon the 
>> normal practice of PBCs per CCC §6333.
>>
>>
>> Fifth is the question of retention of the materials that have been 
>> inspected.
>>
>> Again, we are not reinventing the wheel here (although our 
>> Investigation Right is, in fact, a breakthrough). Procedures 
>> concerning retention will be developed by our independent counsel 
>> based upon best practices of California PBC's whose Inspection 
>> procedures are governed by CCC §6333.
>>
>>
>> Sixth is the question of costs.  None of this stuff is without cost. 
>> Who pays?
>>
>> Asked and answered (above). Costs of audits under the Investigation 
>> Right, audits which are triggered by the community, are paid by 
>> ICANN.
>>
>>
>>
>> As a an attorney in California, particularly one who has been on 
>> ICANN's board and one who has exercised these powers of inspection I 
>> am not at all confident that these measures are consistent with the 
>> California law that governs public-benefit/non-profit corporations.
>>
>> 1. Mr. Auerbach has never exercised the Inspection rights in 
>> question. His claim to have done so is false. He may have exercised 
>> Inspection rights granted to Board members, such as they existed a 
>> decade and a half ago. He has never exercised Inspection rights 
>> granted to corporate members, circa 2016, because ICANN has not been 
>> nor will be a membership corporation under the California 
>> Corporations Code and the Inspection rights we are creating based 
>> upon CCC §6333, to the best of our knowledge, have never before been 
>> ported in their entirety to a private corporate entity.
>>
>> 2. Mr. Auerbach is absolutely wrong in his assertion regarding the 
>> consistency of our Inspection provisions with California law. Our 
>> Inspection Rights are specifically ported from California 
>> Corporations Code §6333. The Investigation Right is completely 
>> consistent with applicable California law.
>>
>> 3. California has many attorneys. Rosemary Fei of the San Francisco 
>> based law firm Adler & Colvin, has been the principle architect of 
>> our Inspection and Investigation Rights. You can read about Rosemary 
>> here: http://www.adlercolvin.com/attorneys/rosemary-fei.php 
>> <http://www.adlercolvin.com/attorneys/rosemary-fei.php> . I was on 
>> the sub-team that retained Adler & Colvin. Adler is the premiere law 
>> firm dealing with nonprofits in the State of California and has done 
>> a great job for us. Mr. Auerbach's biography does not indicate any 
>> substantive knowledge of or experience in California nonprofit law. 
>> What little legal experience he has appears to be in the field of 
>> intellectual property law. His bio  may be found here: 
>> http://cavebear.com/index.php?option=com_content&view=article&id=16&Itemid=52 
>> <http://cavebear.com/index.php?option=com_content&view=article&id=16&Itemid=52>.
>>
>>
>> And he added
>>
>> BTW, the inspection rights being proposed are at best a thin shadow 
>> of the inspection rights that the law of California (and also of most 
>> other places) grants to each member of a board of corporate directors 
>> or to members of a public-benefit/non-profit (as is ICANN) that has 
>> "members".
>>
>> Mr. Auerbach's assertion heretofore is completely and absolutely 
>> untrue. Karl has no idea what he is writing about.
>>
>> Our Inspection Rights are directly ported from the California 
>> Corporations Code. Our Investigation Right takes the California 
>> statutory Inspection Right and extends it in ways heretofore 
>> unprecedented in corporate California. A thin shadow?: Quite the 
>> opposite..
>>
>> The CCWG Inspection rights exceed  California law in ways that, 
>> frankly, are revolutionary. We achieved transparency rights  in the 
>> CCWG that are far more extensive than Mr. Auerbach ever attempted in 
>> his conflict with ICANN over a decade ago and have achieved far more  
>> thnt are possessed by the standard California Public Benefit 
>> Corporation. Opinion? No. Fact.
>>
>>
>> Corporations have always been cauldrons of competing interests.  The 
>> corporations law of California is based on more than two centuries of 
>> practical experience resolving those interests.  That law is hardly 
>> irrational.  Nor is it unique.  Laws like it are found around the 
>> world.  It would be far better to use the machinery already in the 
>> law regarding directors and members than to invent something new that 
>> would be fought tooth and nail by ICANN.  It took me 18 moths and a 
>> fair amount of money to fight ICANN when it refused to honor an 
>> extremely clear inspection provision of the law.  Think how much 
>> longer ICANN could drag out this new thing that is being proposed, 
>> especially given the argument, one that will be made, that it is an 
>> attempt to turn a corporation into what is, in effect, the sole 
>> proprietorship or partnership of the designated party or parties.
>> <~WRD000.jpg>
>>
>>
>> Folks, I once respected Karl Auerbach. No longer. With regard to the 
>> CCWG proposal Mr. Auerbach is completely ignorant as to it's content, 
>> structure, history and process. I doubt he's read the actual 
>> proposal. If he has he doesn't understand it. I make a habit of 
>> reading and understanding things before I criticise them. Mr. 
>> Auerbach apparently does not.
>>
>> I do agree with Mr. Auerbach that we would be better off using the 
>> membership PBC contained in the California Corporations Code than the 
>> model we are proposing. Other community groups disagreed.  That said, 
>> in terms of Inspection and Investigation the CCWG proposal is FAR 
>> SUPERIOR to that contained in the California Corporations Code.
>>
>> This has been my focus on the CCWG. I've spent in excess of several 
>> hundred hours working with Board members, our attorneys, the CCWG 
>> co-chairs, our NCSG contingent, participants and members from the 
>> IPC, BC,  ISPC, RySG, RrSG, CCNSO, ALAC and ASO to get these rights 
>> for the community. There's been a lot of education and surprisingly 
>> little compromise. Frankly, we achieved more in this area than I 
>> thought possible. I not only got what I wanted, I got a lot more than 
>> I wanted. It's amazing what happens when you work with people instead 
>> of insulting and suing them.
>>
>> It's easy to lob hand grenades. It's a lot harder to build things. If 
>> Mr. Auerbach wishes to criticise our work he should read our report 
>> first. Then I'll be happy to engage. If any of our members have 
>> questions, please ask. I'd appreciate it if you would read our 
>> proposal first. It can be found on pages 6-7 
>> here:https://community.icann.org/pages/viewpage.action?pageId=58723723&preview=/58723723/58724026/Annex%2001%20-%20Rec%201%20FINAL.pdf 
>> <https://community.icann.org/pages/viewpage.action?pageId=58723723&preview=/58723723/58724026/Annex%2001%20-%20Rec%201%20FINAL.pdf>. 
>>  It will one a pleasure to walk you through what we have achieved. 
>> It's a big achievement for our group and for our community.
>>
>> Happy Valentines Day everyone. I hope it's not too late to go back to 
>> mine. I just did not want to let these untruths and inaccuracies by a 
>> non-NCSG member  fester any longer than necessary. Any chance next 
>> year we can make Valentines Day a post free holiday? :)
>>
>> Best,
>>
>> Ed
>>
>> ---
>>
>> Right to inspect accounting books and records of ICANN
>> 19
>> In addition to the statutory ri
>> ght that the Empowered Community will have and the new
>> Community Powers described in Recommendation #4, the CCWG
>> -
>> Accountability
>> recommends including in the ICANN Fundamental Bylaws the right for 
>> Decisional
>> Participants in the Empowered Community to inspect
>> as outlined in California Corporations
>> Code 6333, although this specific article reference would not be 
>> mentioned in the Bylaws.
>> 20
>> This inspection right is distinct from the Document Information 
>> Disclosure Policy (DIDP).
>> While any eligible party can file a
>> request according to the DIDP, inspection rights are only
>> accessible to Decisional Participants in the Empowered Community. The 
>> scopes are also
>> different as explained below.
>> This inspection right would include the accounting books and records 
>> of ICANN an
>> d the
>> minutes of proceedings of the Board of Directors and committees of 
>> the Board of
>> Directors, on the conditions discussed below. Since ICANN w
>> ill not have statutory
>> “members
>> ”
>> ,
>> the right to inspect “member” meeting minutes would not apply.
>> Although the
>> Corporations Code does not defin
>> e “books and records of account
>> ”
>> ,
>> the
>> term is generally understood to refer to the journals and ledgers in 
>> which financial
>> transactions are originally entered and recorded, and the statements 
>> compiled from
>> them. The term gen
>> erally does not extend to source documents on which books and
>> records of account are based, such as canceled checks and invoices. 
>> Similarly, the
>> term generally encompasses documents relevant to the operation of the 
>> corporation as
>> a whole, and not to those
>> relevant to only a small or isolated aspect of the corporation’s
>> operations.
>> Authority under Section 6333 is sparse, but it is nonetheless clear 
>> that a “purpose
>> reasonably related to [a] person’s interests as a member” does 
>> not include a member’s
>> commercia
>> l or political interests, harassment, or massive and repeated 
>> inspection
>> demands probing the minutiae of financial records and details of 
>> management a