Re: [ga] Cavebear overcomes stonewall. Auerbach wins decisively.

["L. Gallegos" <jandl@jandl.com>]

On 29 Jul 2002, at 13:37, Gary Osbourne wrote:

> Bret Fausett, who attended the court case this
> morning, has the details at:
> http://icann.blog.us/
> As they're still being posted I won't link to an
> individual item. Congrats to Karl and real openness.
> Let's see ICANN spin this one. -g

From the ICANN blog.
1) non-confidential records maintained in electronic form shall be delivered to Mr. 
Auerbach by August 2nd; (2) non-confidential documents maintained in non-
electronic form shall be made available for Mr. Auerbach's review in Marina del 
Rey at a mutually agreeable time before August 9th (and Mr. Auerbach is 
entitled to request copies of the non-confidential documents  

"Confidential" documents, whether in electronic form or in hard-copy, shall be 
made available for Mr. Auerbach's review in Marina del Rey at a mutually 
agreeable time before August 9th. Mr. Auerbach cannot disclose the contents of 
a document designated "confidential" without giving ICANN at least  10 days 
notice (and the burden then would fall to ICANN to seek further protective orders 
preventing disclosure). Mr. Auerbach's access is not conditioned on his signing, 
or agreeing to abide by, the confidentiality form presented by ICANN."

Here's ICANN's spin:

"The Court also ruled orally that ICANN must, by Friday of this week, provide Mr. 
Auerbach with electronic copies of all "non-confidential" (as designated by 
ICANN) materials he has requested that already exist in electronic form. 
However, the Court also established a procedure where the Court will decide the 
extent, if any, to which Mr. Auerbach may publish materials that ICANN 
considers confidential. The Court also sided with ICANN that Mr. Auerbach's 
inspection of such materials must be at ICANN's offices.  "

"The ultimate effect of the Court order is essentially the same as the ICANN 
procedure that Mr. Auerbach refused to follow. In both cases, Mr. Auerbach had 
the full right to inspect any and all documents at the ICANN offices, a right that 
was never in dispute. And in both cases any disagreements about his right to 
publish any of those materials would ultimately be resolved by a court, not by 
ICANN or Auerbach."  

Wasn't Karl's point that he was refused access unless he signed the document 
that the ICANN staff required?  He also has the right to copies of all non-
confidential documents, whether electronic or non-electronic.  That was 
something else ICANN did not want to allow.  Karl never said he would publish 
"confidential" material.  However, he has to only provide a 10 day notice to 
ICANN if he intends to publish and it is up to ICANN to seek remedy from the 
court to prevent it - not the other way around.

I agree with Brett that Karl won the issue, which is a good sign for us, the public.

And here is the sorry final paragraph:

"It is unfortunate that ICANN's limited resources must be used for matters such 
as this, which do not advance the core mission of ICANN. But so long as one of 
ICANN's directors continues to assert that he has a unilateral right to make 
decisions on behalf of ICANN without regard to the views of his fellow directors, 
ICANN is required to seek to protect the rights of the corporation from being 
abridged by the unilateral action of an individual director."

It is the precise role of a minority director to do exactly what Karl is doing and 
the court noted this role.  If a minority director had no right or power to insist on 
those rights, there might be no stopping a run away board.  At least there is one 
director who takes it seriously enough to make an effort to do the right thing.

I found it noteworthy that ICANN attempted to compare its position to that of 
Microsoft and IBM.  The court pointed out the difference between a for-profit 
corporation and a non-profit, public benefit corp.  Now, should that have even 
been necessary?

Leah


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