Re: [ga] Getting Heard by the ICANN Board

[Karl Auerbach <karl@xxxxxxxxxxxx>]

On Thu, 14 Dec 2006, Vittorio Bertola wrote:

> kidsearch ha scritto:

> I will have all prerogatives of Board members, fully participate in the Board 
> mailing list and meetings, and obtain access to documents and information 
> that Directors have, under similar confidentiality rules

What confidentiality rules are board members under?

Remember, I went through a legal action in which the judge declared 
ICANN's conditions on my access to be unlawful.

The case record may be viewed at:
http://www.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/Auerbach_v_ICANN/

Have directors forgotten that?  Have they continued the ICANN tradtion of 
Directors who are too insipid to even resent unlawful shackles on their 
rights and duties?

Remember, under California law, directors have the "absolute right to copy 
and inspect".  And that word "absolute" means absolute, unconditioned, 
unconstrained by anything less than the director's fiduciary duties and a 
reasonable time.

Here it is right from the California Corporations Code:

  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.

And those fiduciary duties that govern exercise of this right are towards 
the corporation but, because ICANN is a public-benefit corporation, 
a director must consider the broader public interest when deciding what is 
and what is not in the corporation's (ICANN's) interests.

If you are a full director and ICANN is imposing restraints, tell 'em to 
jump in a lake.

> There is a provision in the Bylaws that should allow me to share confidential 
> information with members of the entity I liaise with (the ALAC), under 
> clauses established by the Board.

Again, if you are a full director, that constraint would be improper. 
Your decisions are guided by board advice, but you are the final arbiter 
for which you, if you are a director, are responsible.

And that goes for information shared with *anyone* - not merely the ALAC.

If you are a director it is your choice, guided by your fiduciary duty, 
but not dictated by the board, by any member of the board, by any 
resolution of the board.  All those things you take as strong advisements, 
but not as dictates.

But if you are not a director, then you are in limbo.

		--karl--