Subject: EFF lawsuit auerbach wins, court criticizes ICANN

From: Gordon Cook <[email-masked]>
Date: Mon, 29 Jul 2002 17:33:44 -0400

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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