Politech is the oldest Internet resource devoted to politics and
technology. Launched in 1994 by Declan
McCullagh, the mailing list has chronicled the growing
intersection of culture, technology, politics, and law. Since
2000, so has the Politech web site.
An ICANN board member's yearlong quest to review financial info
- Date: Tue, 04 Dec 2001 17:56:24 -0500
- To: firstname.lastname@example.org
- Subject: FC: An ICANN board member's yearlong quest to review financial info
- From: Declan McCullagh <email@example.com>
- Cc: firstname.lastname@example.org
[Forwarded from Dave Farber's IP list; I invite ICANN representatives to
reply. Background on Karl's relationship with ICANN (and campaign for a
board seat last year:
>Date: Mon, 3 Dec 2001 13:52:32 -0800 (PST)
>From: Karl Auerbach <email@example.com>
>To: David Farber <firstname.lastname@example.org>
>Here's more on my now year-long quest to inspect ICANN's records:
>A Director of virtually any corporation in the US has several rights and
>The obligation side of the equation is very strong - it's called a
>"fiduciary" duty, which is one of most stringent obligations that our
>legal system can impose on a person. As part of that duty, a Director is
>compelled to exercise his or her *independent* judgement. The ability of
>a Director to elect to rely upon the judgement of others is very tightly
>As a Director I could be personally liable for corporate misdeeds. There
>are laws that protect some directors, but they are largely really not much
>more than rice-paper walls that may easily be pierced.
>In other words, there are big Swords of Damocleas that hang above
>The legal system recognizes that it is useless to impose responsibility on
>Directors without also giving them, each of them individually, the powers
>to become informed so that they may make informed judgements. To that end
>the law gives Directors strong powers to inquire into every aspect of a
>Under the California corporations code that governs
>non-profit/public-benefit corporations (such as ICANN) those rights are
> 6334. Every director shall have the absolute right at any
> reasonable time to inspect and copy all books, records and documents
> of every kind and to inspect the physical properties of the
> corporation of which such person is a director.
>It's not often that a legislature underscores that a right is "absolute".
>This right to inspect and copy not a collective power that may be
>exercised only by the board acting in concert. Rather it is a distinct
>power that exists in each and every Director - it may be exercised upon
>the independent discretion of each Director.
>And a Director is not required to indicate to corporate management the
>purpose of his or her inspection or what he or she is looking for.
>I have asked to inspect ICANN's financial records along with several other
>documents (such as the employee handbook and proprietary rights
>agreements, if any, that govern employee conduct). I have also asked to
>review the billing statements and conflict waiver requests from those who
>render professional services to ICANN - that's a natural part of my role
>on ICANN's "conflicts" committee, but it is a request that I could make
>even were I not on the conflicts committee.
>In my experience as a Director of various corporations, inspection of the
>corporate financial records is a good way to inquire as to the efficiency
>and behavior of corporate management. In most corporations, requests such
>as mine are quickly and fully answered by management without stonewalling,
>without demands for restrictive covenants that would force a Director to
>surrender his or her rights of independent judgement, and without
>statements from management that more than implicitly assert that the
>Director has some nefarious purpose.
>One must remember that those fiduciary obligations that I mentioned impose
>upon a Director an obligation of loyalty to the corporation. That
>obligation generally requires that a Director keep confidential that
>corporate information that is, in-fact, confidential. However, the
>Director is not compelled to blindly and unthinkingly accept any
>self-serving labels of confidentiality that corporate management may chose
>I made my initial request to inspect the financial records - in particular
>the general ledger - more than a year ago. Despite repeated efforts and
>requests, I still have not been allowed to see those records.
>Oh, ICANN's management will say that they have afforded an opportunity;
>that I merely need to sign away my duty of independent judgement, that I
>merely need to allow corporate management to bind me in advance in how I
>may review the activities of that very same management; that I allow
>management to set conditions on the inspection that are so limiting that
>they would render any such inspection marginal and superficial.
>To sign these agreements would be to abandon my Director's obligations of
>independent judgement - I would be agreeing to allow my decisions to be
>controled by ICANN's management - by exactly the same people whose actions
>I am obligated to review.
>To add insult to injury the "agreements" that ICANN has demanded that I
>sign are cast in the most condescending of language and contain unfounded
>assertions against my personal integrity.
>All of this has occurred for the most part outside of the public eye.
>And even if I do gain access to corporate records the information that I
>review will almost certainly remain inaccessible to the public - My
>obligation of loyalty to the corporation demands that I use the
>information only to improve the corporation and it is unlikely that
>disclosure would further that obligation. But one can not agree in
>advance, as ICANN's management is demanding, that disclosure may never
>occur. For example: In the unlikely event that I were to discover
>information that must be disclosed - such as evidence of criminal activity
>- then, of course, my duties would be affected accordingly.
>ICANN's management has demonstrated over the course of the last year that
>it has an institutional hostility and an intent to preventing me from
>carrying out my duties as a Director of the Corporation.
>My recourse is to either abandon my obligations as a Director or to
>initiate such steps outside of the corporate boundaries as are consistent
>with my obligation of loyalty to the corporation.
>Such steps cost money, potentially lots of money.
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
Declan McCullagh's photographs are at http://www.mccullagh.org/
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Return to politechbot.com