NCSG statement on the SOI TF report

[Nazar Nicholas]

@Julf, the SOI looks impressive

On Sat, Apr 8, 2023, 4:19 AM Jean F. Quéralt <
000016bf26350d73-dmarc-request at listserv.syr.edu> wrote:

> That looks good.
> Thx Julf.
>
>
> On Sat, Apr 8, 2023, 01:31 Johan Helsingius <julf at julf.com> wrote:
>
>> Hi Marika,
>>
>> Here is the NCSG statement on the SOI TF report.
>>
>>         Julf
>>
>>
>> - - - -
>> The ICANN Statement of Interest (SOI) is integral to the transparency
>> and accountability of  healthy policymaking processes. ICANN
>> policymaking processes are open to the public, encouraging participation
>> from all. To prevent capture by powerful individuals or groups, it is
>> crucial to be aware of whose interests are being represented.
>> Confidentiality in SOIs jeopardizes the integrity of the policymaking
>> process, making it more susceptible to capture. Attorney-client
>> privilege should not apply to public policy-making. If clients are not
>> willing to be disclosed when participating in policy processes, they
>> should not be represented.
>>
>> As the response from the BC specifically mentions NCSG, we would like to
>> address the misunderstanding that BC seems to have about privacy and
>> transparency supposedly not being compatible. Privacy and transparency
>> are not adverse to each other, and the NCSG charter specifically
>> mentions transparency as one of the Principles for both Members and
>> Leaders. Public interest and noncommercial groups regularly advocate for
>> appropriate privacy AND appropriate transparency. The same people who
>> are most ardent advocates for privacy are also the leaders of Freedom of
>> Information legislation and initiatives around the world that protect
>> it.  Public processes benefit from knowing who is representing who and
>> then balancing the interests of the many different participants in a
>> proceeding.
>>
>> Conflating invasion of privacy with Statement of Interest in public
>> policy-making is disingenuous, if not dangerous. We need to know how our
>> policy making groups work; we need open and transparent policy-making
>> processes, and this is only possible when we know, with no shadow of a
>> doubt, which parties are sitting at the table influencing policy
>> decisions.
>>
>> Privacy and transparency are part of the very same process - they work
>> hand in hand to make sure that no single or few powerful entities make
>> decisions for all.
>>
>> Finally, NCSG must respectfully contest the underlying proposition by
>> the BC that attorneys cannot disclose their clients in policymaking
>> proceedings.  In very few circumstances is the “fact of the
>> representation” considered confidential; it’s the information the client
>> discloses, the substance of the representation, that is confidential.
>>
>> We provide a few examples:
>>
>> [1] See Cal. Formal Op. 2011-182 (2011). "In most situations, the
>> identity of a client is not considered confidential and in such
>> circumstances Attorney may disclose the fact of the representation to
>> Prospective Client without Witness Client's consent." Citing to Los
>> Angeles County Bar Association Professional Responsibility and Ethics
>> Committee Op. 456 (1989).
>>
>> https://www.hklaw.com/en/insights/publications/2018/03/aba-clarifies-lawyers-confidentiality-obligations
>>
>>
>> [2] Supreme Court of Pennsylvania, The Rules of Professional Conduct.
>>
>> 3.9 Advocate in Nonadjudicative Proceedings
>>
>> A lawyer representing a client before a legislative body or
>> administrative agency in a nonadjudicative proceeding shall disclose
>> that the appearance is in a representative capacity and shall conform to
>> the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
>>
>> https://www.padisciplinaryboard.org/Storage/media/pdfs/20210920/140616-rpc2021-08-25amended.pdf
>>
>>
>> We look forward to a rapid completion of this important discussion and
>> to full and fair disclosure in the future!
>>
>
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