As I've noted before, on the surface, ICANN's decision to fight this case made absolutely no sense. California statute law was pretty clear: the director's right to view documents is "absolute". True, there weren't a lot of cases, because corporations are not usually this stupid, and in a couple where the director was out to steal corporate info in order to benefit a rival, the court found an exception. That didn't seem to have much to do with this case. Why fight? What could be worth it?

Even if ICANN's lawyers were right about the law, the lawsuit seemed strategically stupid. What could ICANN have to hide that was worth thousands of dollars? And that would justify the bad public relations if ICANN lost? Or was this a reflexive move driven simply by hatred of Karl Auerbach, the director who refused to play nice? Is ICANN that petty? It seems hard to believe. But the alternatives are even more peculiar.

The bottom line is this: Either ICANN has nothing to hide, in which case it just spent a fortune on spite and bad publicity on a case that no unbiased observer could have thought was an easy win for ICANN. Or ICANN's legal advisers are out to milk it for every dime, and the Board lacks the spine or the time (these guys do *not* lack the brains) to overrule the lawyers on strategic grounds when they give patently silly advice. Or ICANN (or its lawyers) has a dark secret or two in the vault. It's very hard to know which of these alternatives is the most probable, but I can't see any others. The funny thing is, if there is a skeleton in the closet, we may never know, since the same California law that requires Auerbach see the documents may impose an ethical obligation on him to keep his lips lips sealed if disclosure would harm the corporation.

Those of ICANN's directors who are neither US citizens nor lawyers have a partial excuse for going along with this insanity, as they were urged to do so by their US lawyers. Perhaps they can't morally be expected to lead a move to overrule their counselors (although in fact the law holds all directors to the same legal standard of care). On the other hand, the US Board members, and a certain Canadian lawyer, have no excuse at all for going along with this -- unless of course they know they have something to hide.

Even if Karl Auerbach is never able to tell us what he finds in ICANN's records, or even if there is nothing there to find, this case tells us something important about how ICANN discharges its responsibilites to be "transparent" and to be a good steward of its resources. And it's not pretty. Nancy Victory, this ball is in your court.

Declan McCullagh's Politech list has some coverage, including a
link to the ruling in HTML format.

I hope the Cavebear sleeps well tonight, he's earned it, and I don't envy him the work ahead. -g

I cannot understand for the life of me why Karl would object to affirming his willingness to keep these records confidential, I followed the procedures myself and had full access to all of the records with no hindrance whatsoever.

There's discussion over at slashdot, and Karl tells Reuters that he will look for records that showed conflicts of interest, improper expenditures, or evidence of other misconduct. Why did no other BoD member ever do this? Because they thought they knew what they would find, or because they didn't want to know? -g