Although I would like to editorialize, let me only say that I think
the Internet owes Karl Auerbach, John Gilmore, and the EFF a big debt
of gratitude
from Brett Fausett's
http://icann.blog.us/
Auerbach Wins, Court Criticizes ICANN
It's hard to imagine a more complete win than what ICANN Director
Karl Auerbach received today from Los Angeles Superior Court Judge
Dzintra Janavs. Working from my notes, Judge Janavs' ruling was in
three parts: (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); and
(3) "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.
(That's what my notes reflect, but a written Order and Judgment
should issue from the Court later this week.)
The more interesting part of today's hearing was what the Court said
from the bench. The Court was very sympathetic to Mr. Auerbach's
position as a critic of ICANN and someone who occasionally votes in
the minority. Her initial rulings were on the evidentiary objections
that Mr. Auerbach made to the Declarations of Stuart Lynn and Vint
Cerf. Objections to allegations about Mr. Auerbach's voting record,
among other things, were sustained as not being relevent to his
ability to access documents. In fact, those allegations may have been
counter-productive to what ICANN hoped to accomplish. The Judge
acknowledged that Mr. Auerbach was elected precisely because he was a
critic of ICANN, and she viewed the California Corporations code as
being supportive of the interests of minority Directors.
Judge Janavs was quite concerned about the passage of time since Mr.
Auerbach first made his request and the fact that he would be
"legislated out of office" in October. She was especially critical of
ICANN, and its other Directors, for the fact that it took ten months
to come up with a procedure for reviewing documents. This is from my
notes (it's close, but not verbatim, to the exchange in Court):
Court: "Ten months to come up with a procedure? This organization has
been going since 1998, and still no procedures for access to records?
You mean none of these people had ever looked at a single record
before Mr. Auerbach's request? That's a sad statement."
ICANN reponded: "Directors are entitled to rely on the work of
outside consultants."
Court: "Yeah, we know how far that goes. Taking one's duties
seriously means taking, from time to time, the initiative to look at
things. Yes, Directors are entitled to rely, but the whole reason for
having outside directors is to allow independent inspections."
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