Dear NCSG members,


NCSG has worked hard gain effective inspection rights at ICANN in
CCWG-Accountability. It is good to also benefit from Karl Auerbach insight.
A former ICANN board member who took ICANN to court to  honor an extremely
clear inspection provision of the law.


Here is what he says in response to the initial blog item of Centre for
Communication Governance blog series on ICANN accountability.

With regard to the initial blog item on the matter of inspection rights.
> 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.
> 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.
> 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.
> 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.
> 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.
> Fifth is the question of retention of the materials that have been
> inspected.
> Sixth is the question of costs.  None of this stuff is without cost. Who
> pays?
> 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.
>
>

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".
> 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.
>


I have to add that I am very proud of what we have achieved with regards to
inspection rights at ICANN. It is interesting to discuss Karl's view for
the future.

Best





> --
> Farzaneh
>