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ICANN ordered to open records

A California Superior Court judge ruled that Internet governing body, ICANN, must open its confidential books to outside board member. ICANN officials stonewalled for 18-months demanding nondisclosure agreement be signed; judge nixed that demand.
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A board member and frequent critic of the secretive practices of the Internet Corporation for Assigned Names and Numbers, ICANN, the governing body overseeing domain names and policies, won the right Monday to inspect the group’s confidential records and internal financial statements without first having to agree to nondisclosure rules that ICANN officials had previously demanded be met.

A CALIFORNIA SUPERIOR court judge ordered California-based ICANN to open its books to Karl Auerbach, an outspoken critic of the group to which he was elected to the board of directors via the first ever Internet-wide election process. One of Auerbach’s first moves after being installed as a board member was ask to see ICANN’s financial records and internal policy making directives.

But ICANN officials stonewalled Auerbach’s request for 18 months, insisting he first agree to not publicly disclose any information he had access to. Auerbach refused to sign. The ensuing stalemate resulted in Auerbach filing suit seeking to force ICANN to open the books.

Judge Dzintra Janavs ruled from the bench Monday that ICANN must deliver all non-confidential, electronic-formatted records delivered to Auerbach by Aug. 2. That all paper-based, non-confidential documents be made available to Auerbach for inspection by Aug. 9 at the group’s Marina del Rey, Calif. offices and that all confidential documents, in any format, be available to Auerbach for inspection at the group’s office.

Judge Janavs held Auerbach to one caveat: he cannot disclose any “confidential” information without first giving ICANN at least ten days notice during which ICANN can ask the court to stop any such disclosure.

The judge also ruled that Auerbach doesn’t have to sign any nondisclosure document.


The decision Monday comes amid a flurry of activity that always seems to be swirling around the controversial ICANN. First, Auerbach’s term as a board member ends Oct. 31. And although Auerbach was the first of five outside board members chosen by the Internet users in the first ever global election, ICANN officials have since decided that such an election process is unworkable and nixed future elections for board members.

Second, ICANN, which is an independent non-profit organization, carries out its mandate under contract to the Department of Commerce and that contract also is rapidly coming to an end. Some members of Congress and Internet advocates are pressing Commerce to dump ICANN and take bids from other groups.

Judge Janavs was “quite concerned about the passage of time since Mr. Auerbach first made his request [to see the books] and the fact that he would be ‘legislated out of office’ in October,” Bret Fausett, a California lawyer attending the hearing Monday, wrote in his ICANN related blog.

Fausett said the judge appeared particularly disturbed that it took ICANN ten months to simply come up with procedures for viewing the documents. When the judge found that no other directors had looked at the records before Auerbach’s request, Fausett records Judge Janavs as saying: “That’s a sad statement.”

When ICANN’s lawyer responded that outside directors are “entitled to rely on the work of outside consultants,” Fausett noted the judge’s incredulity at that remark, especially in wake of recent corporate scandals surrounding Enron and WorldCom.

“Yeah, we know how far that goes,” Fausett quotes the judge saying. “Taking one’s duties seriously means taking, from time to time, the initiative to look at things” and that the reason businesses have outside directors is to allow “independent inspections.”


But ICANN sees the judge’s ruling differently.

“The procedures we had in place are really no different now” from the judge’s ruling today, said Mary Hewitt, ICANN’s director of Communication, “it’s just that the courts are involved.”

However, the judge Monday ruled that those procedures “unreasonably restrict directors’ access to corporate records and deprive directors of inspection rights afforded them by law.”

Hewitt insists that ICANN offered Auerbach full access any time he wanted it, “with the caveat that he just not run amuck with everything that might be confidential.”

Now if Auerbach decides to make any confidential information public “it’s going to be up to a judge actually to decide if we have a problem,” Hewitt said.

That statement infuriates Auerbach.

“I am not making any confidential information public, four exclamation points! I am not making any confidential information public, four exclamation points,” Auerbach repeated, nearly yelling into his cell phone as he spoke to from a noisy restaurant. “I’ll keep saying it,” Auerbach insisted, “because ICANN keeps saying I’m going to and ICANN keeps lying.”

The trial record shows that Auerbach was the one who first proposed a notification period, said his lawyer James Tyre. The only difference is Auerbach initially proposed a seven-day notification period instead of the 10 days the judge ordered Monday, Tyre said.

Auerbach told ICANN that during the notification time “you’re more than welcome to talk to me and it’s very likely that I’ll listen to your advice and if for any reason we can’t come to an agreement you’ll have time to go to court and get an order to prevent me from releasing the information,” Tyre said of Auerbach’s early attempts to “break the logjam.”

For his part, Auerbach says he never had any intention of making confidential information public.

“I am getting this information for my own purposes, for my own use, to make better decisions and they’ve known that from day one,” Auerbach said. “This whole 18-month delay, this whole sham they’ve put me through, has been nothing but them causing delay,” he said. And as a result, “they’ve destroyed the public representation of ICANN by their 18 month delay.

“There should be crow eaten at ICANN,” said James Love, director of the Consumer Project on Technology, a Washington-based Ralph Nader group. “One has to wonder, why has [the Department of Commerce] sat by and watched ICANN act like Enron or WorldCom?” Love said. “Why can’t we insist that the word accountability be spoken in the same sentence” as control over the Internet’s core computer systems, Love said.