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ICANN Director Sues ICANN for Access to Records

Posted by michael on from the nutcracker-suite dept.

According to an EFF press release (press release mirror) today, Karl Auerbach (the North American elected representative to ICANN's board) filed suit (petition mirror) today against ICANN itself to obtain financial and other records that he has been seeking to obtain since December 2000. As a bit of background, according to general summaries that ICANN has released, it now spends about $6 million per year (for a job that used to be done by volunteers); roughly half of all the money it spends goes to the law firm of Jones Day.

31 of 128 comments (clear)

  1. Something is fishy here by TrollMan+5000 · · Score: 5, Insightful

    When a company's own director is denied access to financial records of his own company!

    Though not an admission of wrongdoing, it does raise some serious issues on how ICANN is run.

    One question, was this director already aware of any wrongdoing, or just checking some facts out?

    1. Re:Something is fishy here by sallen · · Score: 5, Insightful
      When a company's own director is denied access to financial records of his own company! Though not an admission of wrongdoing, it does raise some serious issues on how ICANN is run. One question, was this director already aware of any wrongdoing, or just checking some facts out?


      A Board of Directors has a fiduciary responsibility to the Corporation. Anyone in management who attempts to withhold access from a Board member should be subject to immediate termination. I'd love to see how the insurer carrying their D&O policy would react to this type of activity. It seems, being non-profit under 501(c)3, it's even more paramount for the board member to insure the finances are in order. It sound like management doesn't realize they are employed BY the Board, and that goes for their legal team as well. (It's interesting to note someone mentioned a law firm receiving a substantial portion of the expenses. Check the 'contributions exceedind 5,000.00' in their financial statements)

  2. Public Record by AlexDeGruven · · Score: 5, Interesting

    ICANN management dragged its feet for nine months, then issued a new "policy" -- never brought before the Board for discussion or vote -- requiring Auerbach to sign a non-disclosure agreement that placed Auerbach's ability to discuss the records at the discretion of ICANN management.

    Appears as though ICANN wants to take something that was apparently public record and turn it into private, proprietary information. Not really a smart thing to do after the request has been made.

    "Here, take a look at our records. Oh, wait, you might use some of this against us? Never mind, sign this binding agreement so we can take care of our CYA initiative."

    --
    Randal Graves says: I'm a firm believer in the philosophy of a ruling class... Especially since I rule.
  3. I've said this before by hrieke · · Score: 5, Interesting

    The internet is designed to route around problems, so why haven't we routed around ICANN yet?
    ICANN was designed to give legitimacy to the way the net is run, and the only way that they could have done that was to spend money. As soon as money entered the picture politics followed. Get rid of both and start from scratch with a better designed and built system. One where democracy rules, where the law is applied equally to both big companies and the little guy.
    Just a side point, what would it take to replace the 13+ root dns servers?

    --
    III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIIIV IIVIIIIIIVIII...
    1. Re:I've said this before by Brian+Knotts · · Score: 5, Informative
      There are already multiple "routes" around ICANN.

      One of them is OpenNIC.

      The challenge is just getting people to use the other routes. Most people don't think there's a problem. Mainly because they don't know what's going on with ICANN.

    2. Re:I've said this before by Seth+Finkelstein · · Score: 4, Interesting
      Why? Read:

      ICANN and Antitrust, by A. Michael Froomkin and Mark A. Lemley :

      The small take-up is hardly surprising, given that the alternate roots suffer from a classic network effect, and that a registration in an alternate root is of relatively little value in the absence of a critical mass of fellow users who can access that root. The existence of this network effect, coupled with ICANN's control over the dominant root, makes ICANN's exclusive deal particularly effective. By denying alternate roots the right to participate in running gTLDs in the legacy root, ICANN keeps those alternate roots marginalized, and makes it far less likely that they will ever achieve that critical mass. The foreclosure in question here is not substantial in percentage terms simply because ICANN's control is so complete.

      Sig: What Happened To The Censorware Project (censorware.org)

  4. JP by rakerman · · Score: 5, Insightful

    Didn't Jon Postel do practically all of what ICANN does?

    Do we really need a huge, opaque, multimillion dollar organization to do... what is they're supposed to do anyway, manage the DNS space? Sheesh.

    1. Re:JP by mindstrm · · Score: 3, Interesting

      Yes.
      He also tried to open up the root servers at one point, and I believe one of hte major powers semi-involved (netsol?) actually got the FBI involved to ORDER him not to interfere.

      Something about him contacting the root servers to organize the addition of some other stuff.

  5. ICANNOT by Anonymous Coward · · Score: 3, Funny

    ICANNOT access my records =(

  6. ICANN is a waste of money by lamj · · Score: 5, Informative

    What positive things did ICANN did so far?

    Let me mention the issue where NSI and some other players not release the expired domains back to the pool. What did ICANN do about it?

    Check out these links

    NSI abuse

    Verisign's status

  7. This is extremely disturbing by hillct · · Score: 5, Funny

    It's shocking that ICANN expects to be able to hide it's basic financials from members of it's own board of directors.

    I was rather amused though by board member Wilson's comment to Auerbach that his request for records had been rejected because he has requested them in Electronic Form; after all. ICANN can't be expected to be particularly technologically savvy. It's not like they do business in a high tech field. In fact, It's a miracle they even have a board member mailing list, from the tone of the petittion.

    --CTH

    --

    --Got Lists? | Top 95 Star Wars Line
  8. Core of Auerbach's petition by Seth+Finkelstein · · Score: 5, Informative
    For better discussion, here's the heart of the matter, from within the petition
    Auerbach contends, simply enough, that the code section means what it says: that as a Director of ICANN, he has the absolute right (at any reasonable time) to inspect, and to copy, any and all of ICANN's corporate records. Of course, Auerbach has not asked to see them all, only a small amount, but both by its actions and in its words, ICANN, primarily through Lynn, contends that it can impose not only "reasonable time" restraints on Auerbach's rights, but also substantive restrictions on his right. In acting on its contentions, ICANN has denied Auerbach his legal right to inspect and copy ICANN records. Indeed, in denying Auerbach the right to inspect and copy records as he sees fit, ICANN has acted contrary to its own Bylaws, as well as S 6334. As quoted in paragraph 5 above, Article V, Section 21 of the ICANN Bylaws provides that "[e]very Director shall have the right at any reasonable time to inspect and copy all books, records and documents of every kind ...." California Corporations Code 5231(a), which also governs the conduct of California Nonprofit Public Benefit Corporations such as ICANN, provides: A director shall perform the duties of a director, including duties as a member of any committee of the board upon which the director may serve, in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.

    Sig: What Happened To The Censorware Project (censorware.org)

  9. I hate to say it... by Lendrick · · Score: 3, Funny

    One where democracy rules, where the law is applied equally to both big companies and the little guy.

    ...but if you move the root dns servers to another universe, we won't be able to access them from here, so it'll be moot.

  10. Can someone please help me out for a second by cdrudge · · Score: 3, Interesting

    and list who exactly all the players are? I thought that most of the ICANN board were to be hated, with the exception of the elected members. Is Karl Auerbach a good guy or the bad guy here? It wasn't clear since he is the Director suing his organization...or is Director in the sense of "Board of Directors" instead of the singular leader, such as a President or CEO?

    1. Re:Can someone please help me out for a second by gorilla · · Score: 4, Interesting

      Karl's a good guy. He was a critic of ICANN from outside for 2 years, before being elected. Since then he's not shut up. This is only the latest battle in the on going war against ICANN's actions.

    2. Re:Can someone please help me out for a second by nomadic · · Score: 5, Insightful

      He's a lawyer and a programmer, and a perpetual thorn in the side of the rest of the ICANN board. He's probably the reason they're trying to abolish the election of members.

  11. Umm by mindstrm · · Score: 3, Insightful

    He *could* I suppose... but...

    IT is *illegal* for them to not provide him with the requested records. He's a director of the company!

    So political gain or not, he is right.

  12. Meanwhile, Back at ICAAN Headquarters by SubtleNuance · · Score: 5, Funny

    "Gentlemen, Start your Shredders!"

    VRMMMMM VRMMM SHHHHHHHHHRREEWWW.

  13. For roughly $500 000... by FFFish · · Score: 5, Funny

    ...I'll do all the work that ICANN does. And I promise to be fair and sensible.

    Which is, all told, a helluva deal for everyone. I'll be a lot cheaper, and you can be damn sure that even at my worst, I can't be even 1/10th as bad as ICANN. :-)

    --

    --
    Don't like it? Respond with words, not karma.
  14. Half of ICANN's 6 Million dollar budget by Anonymous Coward · · Score: 5, Interesting

    Went to a single law firm. Has ICANN been involved in 3 million dollars worth of litigation? I can understand that they may have use of a lawyer's service in their position but 3 million dollars worth?

    Lots more questions then beg to be answered. How many lawyers was the money paying for. What did they do? Is the same law firm the one suggesting ICANN not release the financial documents? Are any of ICANNS managers benefitting from diverting so much money to the law firm?

    Oh man people are going to want to know answers to all these things, while ICANN skitters around looking for something to scurry under to escape the terrible light.

    1. Re:Half of ICANN's 6 Million dollar budget by frost22 · · Score: 3, Interesting

      If you read Karl's account closely, it's more the law firm running ICANN for it's own profits than the other way round.

      --
      ...and here I stand, with all my lore, poor fool, no wiser than before.
  15. Re:influence by reemul · · Score: 3, Insightful

    The budget isn't that big. To you and me $6 million USD is a pretty sexy number, but once they've paid themselves, their lawyers, and their lobbyists, they wouldn't have enough money to buy even a single congresscritter, much less be able to exert significant influence around the world.

    I suspect a lot of the budget that isn't going to the law firm is going to pay for all the meetings in out-of-the-way places they use to hide what they're up to while pretending to be global. Ghana?!? Who had that bright idea? Including all the laptops of members and lackeys and press, the number of PCs in Ghana likely doubled for the duration of the conference. Nice work if you can get it, I suppose.

    --
    You're just jealous 'cuz the voices talk to *me*
  16. ICANN meeting in Ghana by bstadil · · Score: 3, Interesting

    There is an interesting article over at Wired about ICANN's future directions following an ICANN meeting in Africa.
    The main issue seems to be fear of increasing US influence. Looks like Esther Dyson has less money to roll naked in since she pledged $10k to studey of "at-large outreach".
    How this square with
    Quote "Lynn (The ICANN CEO) also published a 17,000-word proposal calling for elections to be abolished and to more closely involve national governments"
    unquote
    is beyond me.

    --
    Help fight continental drift.
  17. ICANNWATCH.org - dedicated ICANN-watching site by Seth+Finkelstein · · Score: 5, Informative
    For those interested in more ICANN-watching, there's the dedicated site

    ICANNWatch

    (which is also covering this story)

    Note the michael posting articles on that site is A. Michael Froomkin, not Slashdot's Michael Sims

  18. Re:Calling All Lawyers... by Jim+Tyre · · Score: 4, Informative
    A director may rely on that which management may choose to spoon feed him, a director is not required to look at everything himself. But if a director wants to look at more than what management chooses to show him, a director has the right to see and copy all corporate records and documents.

    -J, not all lawyers, but Karl's lawyer

  19. Re:Who do we sue? by Sloppy · · Score: 4, Insightful

    They aren't really accountable to anyone, at least in the traditional sense. Their real power is entirely defacto. You give them power when you use (or run) nameservers that point to their roots.

    To whom do we petition to have that power revoked?

    For most people, the party to petition is your ISP. Whoever runs the resolver you use, needs to point to other roots. If that party is unresponsive to your desires, then you can either find someone else's resolver to use, or run your own bind or djbdns (or similar software) to query from the roots yourself.

    I believe a few months ago, I saw that someone on the OpenNic forums was making a resolver or two open to the public, for people who don't want to mess with such details. Beware that using a far-away resolver does come with a slight performance hit.

    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  20. Jones, Day, Reavis & Pogue by Garry+Anderson · · Score: 5, Interesting

    I had asked the question before on ICANNs own forum: It seems to me difficulties are due to piss poor management and nothing to do with need for structural reform. For instance, why stick with Jones, Day, Reavis & Pogue? Is it because of certain old ICANN links with them? Are JDRP profiteering? They are very costly - have you looked for other Law firms?

    Have you checked out JDRP.com - and their people involvement with ICANN?

    A quote from a Karl Auerbach:

    Jones, Day, Reavis & Pogue is ICANN's law firm, and has been so since the day of ICANN's birth. Indeed Jones-Day actually performed the incorporation ceremony in its Los Angeles offices.

    Jones, Day, in the person of its principle man-on-the-ICANN-scene, Joe Sims, was present for at least half a year before ICANN was born, working in the shadows, responding to unknown interests and possibly making unknown deals. About all we know about that period is that those who were not insiders to Joe Sims process were ignored and that those who objected were treated with condescension and abuse.

    Over the life of ICANN, Jones, Day has been the the dominant creditor of ICANN.

    Even now Jones, Day continues to receive a lion's share of every dollar that flows into ICANN.

    And one of Jones, Day's partners, Louis Touton, left the firm to become ICANN's Vice-President, Secretary, and General Counsel.

    There is in my mind a question about the appearance of propriety.

    Karls platform.

    ***End quote.

    In a good two month period, October and November 2000, they got $465,553.67 from ICANN.

    ICANN minutes.

    As it one of the largest intellectual property practice groups in a general-practice law firm - with more than 85 intellectual property lawyers, I would imagine Jones, Day, Reavis & Pogue make a lot of money on trademarks problems on the Internet.

    Jones, Day, Reavis & Pogue.

    Virtually every word is trademarked, be it Alpha to Omega or Aardvark to Zulu - even common words you learnt with your A B C's - apple, ball and cat - most many times over.

    MOST share the same words or initials with MANY others in a different business and/or country. For example, the World Trade Organization (WTO) shares its initials with six trademarks - U.S. alone (please check). Conflict is IMPOSSIBLE to avoid.

    The solution to this problem has been ratified by experts - so that ALL registered trademarks can be identified on the Internet.

    Jones, Day, Reavis & Pogue know this solution.

    They would lose a lot of money, if there was less trademark problems on the Internet - wouldn't they?

    Draw your own conclusions - but it is my opinion they do not want the solution to 'consumer confusion', 'trademark conflict' and 'passing off' problems on the Internet.

    There is in my mind certainly no question about the appearance of corruption - it is beyond doubt.

    Please visit WIPO.org.uk to see. No connection with the United Nations WIPO.org.

  21. Help them out... support the EFF! by GuNgA-DiN · · Score: 3, Informative
    If you haven't already joined I suggest that you become an EFF member today! If you are a member I suggest you give them a donation:

    http://www.eff.org/perl/join

    Everyone likes to talk about fighting for causes like freedom of speech, privacy, and individual's rights. But, the EFF takes on cases that fight for these things all the time! If you support Karl's fight against ICANN head on over and donated $10 or $20 now!

    Put your money where your mouth is!

  22. Because ICANN (cheap shot) by buss_error · · Score: 3, Interesting

    Also, I think ICANN is a California Non-profit. As such, it's records are also public record to some extext, are they not? IANAL.

    --
    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
  23. No, JP didn't do what ICANN does. by billstewart · · Score: 5, Insightful
    • He didn't play politics much,
    • He didn't declare himself to be autocrat of the world,
    • He didn't refuse to listen to real users,
    • He didn't act obnoxiously and irresponsibly.
    Jon Postel wasn't perfect, and he did make some mistakes, but he was fundamentally reasonable and tried to do a good job. He didn't let the fact that he really was in charge of the world as we know it go to his head....
    --

    Bill Stewart
    New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
  24. Salon interview with Auerbach by Robotech_Master · · Score: 3, Interesting
    This interview in Salon Magazine lets Auerbach go into more detail about why he's suing, and the roadblocks that ICANN has thrown up when he's tried to get the records. He makes comparisons to Enron, and talks about director M. Stuart Lynn's proposed plan for reorganization.

    My favorite bit:
    Is there anything in the plan that's useful?

    I think it would make great kindling for a fire. There's nothing in it that's useful.
    (I already have 50 karma, so don't be afraid to mod me up for Informative. :)
    --
    Editor Emeritus and Senior Writer, TeleRead.org