Re: IP: icann peace mission

[David Farber <dfarber () earthlink net>]

-----Original Message-----
From: Karl Auerbach <karl () cavebear com>
Date: Mon, 25 Mar 2002 10:21:13 
To: David Farber <farber () linc cis upenn edu>, Tom Weber <tweber () wsj com>
Subject: Re: IP: icann peace mission


> dave -- here's my column from today's WSJ. as threatened, i nominate *you*
> for the general zinni role in the icann peace process. since this column
> mentions the name "icann", i will spray my inbox with asbestos and await the
> inevitable flames. cheers, tom

No flames, just clarification.  ;-)

ICANN has been asserting that because I refuse to sign their 
non-disclosure agreements that I am intent on publishing personnel data.

Nothing could be further from the truth.  In fact, I could be personally 
liable if I did so.

There is a law that covers my actions - it the law of fiduciary
responsibilities - and that law requires me to carefully exercise my
independent judgement to protect the interests of ICANN.  And it is rather
unlikely (although not impossible) that I would ever come to the
considered conclusion that publishing personnel data would be in the best
interests of ICANN.

In other words, I am already governed by a rather more strict law than
what is contained in any proposed non-disclosure agreement.

The subtlety that is frequently missed is that my fiduciary
responsibilites require that I personally make my decisions about what I
do or do not do.  ICANN's aproach is to saddle me with managment-made
decisions.

In many cases the result will be the same - I won't be disclosing to
public that information that I learn from my inspections - but the
difference is that the decision will be my own and not something forced
upon me by ICANN's management.

And that is right and proper.  Part of my job as Director is to look for
errors and improprieties that may have been committed by corporate
management.  My ability to do that would be substantially compromised if
that same management can dictate to me what information I may see and
under what terms.  That is one of the reasons why California, ICANN's home
state, gives Directors the "absolute right" to inspect and copy corporate
records.

Imagine if Enron had had a motivated director who requested to examine
Enron's raw financial data but who had been blocked from doing so because
Kenneth Lay required that the Director first enter into a
management-protecting non-disclosure.

We have a crisis today of corporate accountability.

Accountability requires that Directors have full access to corporate
information.  Corporate management must not be allowed to place shackles
around the wrists and ankles of Directors who chose to go beyond the
pre-digested materials presented by corporate management.

Corporate confidentiality is protected by the fiduciary duty of loyalty to
the corporation that is imposed on each director as a matter of law.

Management imposed non-disclosure agreements are a muzzle that does
nothing except protect the ill acts of corporate management from the
daylight that Director inquiries can bring.

One more point:

ICANN has asserted in a press release that I alone among the directors
have refused to affirm my fiduciary duties.  That is a falsehood.  I have
made such affirmations in multiple forums since before my term began.  I
even made such affirmations in letters to ICANN's President/CEO and in
e-mails to the Board of Directors.

                --karl--









For archives see:
http://www.interesting-people.org/archives/interesting-people/