ICANN Director Sues ICANN for Access to Records

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.

Comments

Something is fishy here

[TrollMan 5000]

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?

Re:Something is fishy here

[sallen]

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)

Public Record

[AlexDeGruven]

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."

I've said this before

[hrieke]

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?

Re:I've said this before

[Brian Knotts]

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.

Re:I've said this before

[Seth Finkelstein]

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)

JP

[rakerman]

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.

ICANN is a waste of money

[lamj]

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

This is extremely disturbing

[hillct]

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

Core of Auerbach's petition

[Seth Finkelstein]

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)

Re:Can someone please help me out for a second

[gorilla]

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.

Meanwhile, Back at ICAAN Headquarters

[SubtleNuance]

"Gentlemen, Start your Shredders!"

VRMMMMM VRMMM SHHHHHHHHHRREEWWW.

For roughly $500 000...

[FFFish]

...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. :-)

Re:Can someone please help me out for a second

[nomadic]

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.

Half of ICANN's 6 Million dollar budget

[Anonymous Coward]

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.

ICANNWATCH.org - dedicated ICANN-watching site

[Seth Finkelstein]

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

Re:Calling All Lawyers...

[Jim Tyre]

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

Re:Who do we sue?

[Sloppy]

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.

Jones, Day, Reavis & Pogue

[Garry Anderson]

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.

No, JP didn't do what ICANN does.

[billstewart]

• 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....