ICANN Ordered To Open Books

The Internet Corporation for Assigned Names and Numbers (ICANN) has until
Friday to cough up documents its been holding from one of its own
directors, according to a summary judgment by the L.A. Superior Court
Monday evening.

The ruling is vindication for Karl Auerbach, who has spent more than a year
trying to gain access to ICANN’s financial and confidential records. After
repeated attempts to gain access to these materials since joining the
ICANN board of directors in 2000, he filed a lawsuit against the organization in March.

However, what gets published to the general population is now in the
court’s hands; Judge Dzintra Janavs, the presiding judge, said the courts
would determine what information Auerbach could release to the public and
that he must review the documents at ICANN’s headquarters in Marina Del
Ray, Calif.

ICANN officials said they are considering an appeal, and will wait to read
the written ruling (which won’t be released until next week) before making
a decision.

Michael Froomkin, in a post to his industry-watchdog site ICANNWatch.org,
said the court’s decision finally enforces common sense to an organization
that is a private corporation in the state of California.

“ICANN has done a lot of things I thought were mistaken, some I thought
were really stupid, and a few that I thought were downright nasty, but only
one that appeared to defy all logic: spending thousands, probably tens of
thousands, of dollars fighting to keep a member of the Board of Directors
from seeing basic corporate documents,” he wrote. “This outcome is not a
great surprise, although it remains surprising that this case should have
to be tried at all.”

The courts rejected a summary judgment ruling filed by ICANN staffers at
the same time Auerbach’s ruling was announced. According to court
documents, “there is no triable issue as to any material fact and
(Auerbach) is entitled to judgment as a matter of law…respondent’s motion
for summary judgment is denied.”

Auerbach’s petition claimed ICANN arbitrarily decided not to release
documents to him, despite the fact California law and ICANN by-laws
entitled him to review any documents he chose.

Instead, he said, an ad hoc committee of ICANN staffers — which included
the audit committee, Louis Touton (ICANN legal counsel) and Stuart Lynn
(ICANN president) — threw obstacles in place to deny him access to records
which he suspects show instances of abuse by ICANN directors and staffers,
namely “excessive payments to disqualified persons,” according to his Web blog.

ICANN has maintained Auerbach has always been free to visit ICANN’s
headquarters and review the documents during business hours — after
signing a confidentiality agreement to prevent him from publishing the
contents of his findings.

ICANN officials view Auerbach’s decision to go through the court system and
“make decisions on behalf of ICANN without regard to the views of his
fellow directors,” as a reason for filing its own summary judgment with the
L.A. Superior Court.

“ICANN is required to seek to protect the rights of the corporation from
being abridged by the unilateral action of an individual director,” said
Mary Hewitt, an ICANN spokesperson. “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.”

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