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
. 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.
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.