Thanks, Carlos!

If anyone is interested in joining the CCWG-Accountability as an individual participant or mailing list observer, please contact [log in to unmask]  Use that email address for official list issues also - it is ICANN staff member(s) for the CCWG-ACCT.

Best,
Robin

> On Feb 15, 2016, at 9:40 AM, Carlos Raúl Gutiérrez G. <[log in to unmask]> wrote:
> 
> 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
>