[NCSG-PC] Public comment on Ombuds Office

Fri Jan 5 13:41:52 EET 2018

Hi,

reading the comment itself, I think it gives a clear rationale for having
an office instead of an individual and highlighting the required
independence of ombudsman.
by its mission and function, it cannot be something in-house or done by an
ICANN staff because there will be dependence toward the organization and
conflict of interest.  I do believe the draft the exact term of "insulate".
The same concern raised when ICANN CEO created a new position for complaint
officers filled by an ICANN staff supposedly handling complaints against
her colleagues!!!

I didn't see that we proposed specifics such consultant, law firm etc in
our comment (did I miss that?) but just an external organization which
gives enough room for implementation.
I don't also think that will increase substantially the cost or budget (we
can check the current budgeting). by the office, I think we only mean a
unit with enough resourcing and funding (ensuring again its independence
and sustainability) to do it works but not creating a new organization per
se.

there were problems with one ombudsman (in fact with the first one I think)
and due to his mission, his power and also the possible CCWG recommendation
to expand more his tasks and role,  we need to be careful here. We cannot
dismiss the need for independence.

I would also caution about the narrative that ICANN is unique,
multistakeholder organization etc which is used by ICANN to dismiss
concerns or reject some recommendations. we are talking here about
practices and recommendations implemented in other spaces and learning from
them. I don't think an ombudsman has to know about DNS or ICANN PDPs but
having expertise in mediating and resolving conflicts, investigating,
applying policies like anti-harassment. not knowing the actors would help
to prevent bias toward any specific group.

Best,

Rafik

2018-01-05 18:20 GMT+09:00 Farell Folly <farellfolly at gmail.com>:

> Dear all,
>
> Internet ecosystem changes so rapidly and regulatory  affairs are very
> complex, too. Beware that even having an office would not prevent ICANN to
> hire consultant or external law firm from time to time, since they will be
> some topic where the office will not have sufficient expertise.
>
> Also having only the option to contract with external law firm (as needed
> or always) without having an office as liaison between both parties won't
> be efficient : a light office (few people) will be needed to make requests,
> manage information and knowledge etc....
>
> I am tempted to say that one law firm is not a good solution for the long
> term time since they may lack some expertise and become excessively
> expensive for simple requests. Therefore, I would recommend a light office
> composed of few subject matter experts that can hire external consultant or
> law firm when needed and strongly justified (here there is another
> challenge : bureaucracy but better try this in-between solution before the
> radical one, i.e putting all the keys in an external hand)
>
>
>
> Regards
> @__f_f__
> https://www.linkedin.com/in/farellf
> ________________________________
> Mail sent from my mobile phone. Excuse for brievety.
>
> Le 5 janv. 2018 09:44, "Arsène Tungali" <arsenebaguma at gmail.com> a écrit :
>
> Dear colleagues,
>
> First, let me thank our penholders for such a great work and for
> having taken the time to go through the material and provide through
> this comment valuable inputs.
>
> I do agree and would encourage us to push for an Office rather than a
> person for now and see how this resolves issues of independance and
> transparency. And maybe later on, push for an external organization if
> we are not satisfied with the scheme of an office as we are
> suggesting. I think Martin's point and worries are valid here.
>
> Some of the reasons i vote for an in-house office are:
> - financial: i think hiring an external group/organization will cost
> ICANN much more money than keeping an in-house office to do the same
> job. I may not be right on this but if this is true, remember we have
> been pushing for cost reduction in our previous comments. I don't want
> us to be seen as asking to cut costs and then suggest a scheme that
> will lead ICANN to an increase of cost.
>
> - I consider going from an individual to an external office is a big
> move/shift, we may be loosing the chance of experiencing what an
> in-house Office can offer as innovation to clear our worries and
> concerns. I believe this should be seen as the next step and later on
> (if need be), to ask for the 3rd option (an external office).
>
> - I also think it is much easier to fire an in-house team rather than
> an external body and i believe the ICANN Or and/or the community would
> benefit much from having the possibility of easily firing this office
> if need be, rather than attempting to go through a process of firing
> an entire organization, which can be hard.
>
> I strongly agree with most of the concerns raised such as the one of
> not allowing this Office to be present at social events. I think this
> can still be enforced even if it is an in-house team. It is just a
> matter of making it clear to them that we don't want to see them at
> GEM parties :)
>
> Please consider these as personal opinions, with my limited law
> knowledge. And happy to join what we will decide as a group.
>
> May I suggest we open this to the membership by January 7th or so to
> allow them a week to review and share their thoughts? And then we can
> finalize it?
>
> Best regards,
> Arsene
>
> 2018-01-05 0:38 UTC+02:00, Martin Pablo Silva Valent <
> mpsilvavalent at gmail.com>:
> > Farzi,
> >       My point was also meant to be for organizations, of mediator and
> > arbitrators, not only individuals. And the organizations with the skills
> to
> > do something like this are very far from Family courts problems, if they
> do
> > family law for some reason is about a lot of money being split rather
> social
> > problems, they might be closer to environmental problems, for instance,
> or
> > consumer issues, but again, in both cases commercial and transactions are
> > usually the way to solve the problem, and what I said previously still
> > applies.
> >       And it is not true that is easier to terminate a contract with a
> consultant
> > (organization or individual) than with an employee. Specially in the US.
> It
> > is far more easy to fire one person or a small team for arbitrary reasons
> > that breaking a contract with a good law firm (specially a long term
> > contract). In such case ICANN might end up negotiating and exit and
> > gathering the evidence for a rightful termination is harder than with
> your
> > own employees. We have better chances on controlling the accountability
> and
> > transparency of a full time in house employee than an external
> institution
> > that will have several clients, cases and partner, employees and
> providers
> > coming and going. For instance, we don’t control how they handle
> > information, and is not as weird as you may think, big companies usually
> get
> > differential treatment, arbitrators more often than not shared schools,
> > universities, neighbourhoods and friends with big lawyers from firms and
> > companies.
> >       I think we can come up with a system with a third party solution
> > eventually, but I just don’t see that it will solve the problems we have
> > with the in-house solution and it brings new problems on there table. I
> > would propose to be more specific in the this wi would change to the
> current
> > situations, but with the in-house full time scheme.
> >
> > As usual, I will always support the consensus of the group, take this as
> an
> > honest opinion before closing the matter.
> >
> > Cheers,
> > Martín
> >
> >
> >> On 4 Jan 2018, at 19:24, farzaneh badii <farzaneh.badii at gmail.com>
> wrote:
> >>
> >> Martin,
> >>
> >> We are suggesting an organization not a consulting individual. Ombuds
> and
> >> mediation service providers can be trained mediators that resolve many
> >> disputes (commercial and noncommercial). Mediation offices also resolve
> >> divorce disputes which are highly sensitive and not always commercial,
> or
> >> they resolve neighbor disputes etc. So they don't have to be focused on
> >> commercial dispute. Some valid points about arbitration services but
> what
> >> we are suggesting does not have to be an arbitration provider nor a law
> >> firm.
> >>
> >> As to knowledge about DNS and multistakeholder model, that can be
> gained.
> >> As it was gained by previous ombuds persons at ICANN.
> >>
> >> As to  easier to detect an in-house ombudsman misbehaving: ok, we can
> >> argue over this but even if that is the case I don't think it's easier
> to
> >> cancel someone's contract whose livelihood is dependent on it than to
> end
> >> a contract with an organization.
> >>
> >> Farzaneh
> >>
> >> On Thu, Jan 4, 2018 at 11:23 AM, Martin Pablo Silva Valent
> >> <mpsilvavalent at gmail.com <mailto:mpsilvavalent at gmail.com>> wrote:
> >> Tati and Ayden,
> >>      I personally I’ve not made up my mind that a third party, a
> consultant,
> >> is going to guarantee independence in the Ombudsman role. Most of
> >> arbitrators, law firm or other organizations with the background to do
> >> this are heavily business sided or, unaware of the multi stakeholder
> >> model, DNS and Internet Governance in general. It is far more easy to
> >> detect an in-house ombudsman misbehaving than an outsider you only see
> in
> >> a room or in an email. Even if we found someone big and neutral enough,
> >> the big ones will always have  more access to them than the res of us.
> >>      Business, law firms and governments will always try as hard as
> they can
> >> to bend the process and lobby, we are not going to change that and we
> for
> >> sure can keep up with it, but if that lobby is forced to be done in the
> >> inside of icann, with someone that is solely dedicated to the ombudsman
> >> role and who’s socializing is openly known and transparent, that cannot
> >> hide behind appointments or emails, the is far more easy for us to
> notice,
> >> point out and document.
> >>      I do agree with the critics that the role has become much more
> demanding
> >> and important, and the current way it is built is outdated to the size
> and
> >> role of ICANN, specially after the IANA Transition. So we should demand
> >> for more documentation, deeper informs, more transparency and more rules
> >> and procedures, not so much for complaints, but for the ombudsman
> itself.
> >>
> >>
> >> Cheers,
> >> Martín
> >>
> >>
> >>> On 4 Jan 2018, at 12:23, Ayden Férdeline <icann at ferdeline.com
> >>> <mailto:icann at ferdeline.com>> wrote:
> >>>
> >>> Thanks for this, Tanya. I've made some minor edits to the document now,
> >>> making the language a little more forceful, where appropriate, and also
> >>> expanding upon the third point. Thanks for considering accepting them.
> >>>
> >>> —Ayden
> >>>
> >>>
> >>>> -------- Original Message --------
> >>>> Subject: [NCSG-PC] Public comment on Ombuds Office
> >>>> Local Time: 4 January 2018 4:07 PM
> >>>> UTC Time: 4 January 2018 15:07
> >>>> From: t.tropina at mpicc.de <mailto:t.tropina at mpicc.de>
> >>>> To: ncsg-pc <ncsg-pc at lists.ncsg.is <mailto:ncsg-pc at lists.ncsg.is>>
> >>>>
> >>>> Dear all,
> >>>>
> >>>> Farzaneh and I drafted a comment on the CCWG-Accountability Work
> Stream
> >>>> 2 (WS2) draft recommendations on the ICANN Ombuds Office (IOO). The
> >>>> call
> >>>> for comment and all the documents related to it could be found here:
> >>>> https://www.icann.org/public-comments/ioo-recs-2017-11-10-en
> >>>> <https://www.icann.org/public-comments/ioo-recs-2017-11-10-en>.
> >>>>
> >>>> Our draft is here:
> >>>> https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgzw
> jjxYxl-aHaYIS-iIGpQ/edit?usp=sharing
> >>>> <https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgz
> wjjxYxl-aHaYIS-iIGpQ/edit?usp=sharing>
> >>>>
> >>>> I will share the document with the list in the incoming days, would be
> >>>> grateful if PC comments and amends it first -- or at least if you let
> >>>> us, the penholders, know that you are comfortable with it. The
> deadline
> >>>> is 14th of January, so we have some time, but would be great if it
> >>>> remains open for comments from our membership, too.
> >>>>
> >>>> Cheers,
> >>>>
> >>>> Tanya
> >>>>
> >>>>
> >>>> NCSG-PC mailing list
> >>>> NCSG-PC at lists.ncsg.is <mailto:NCSG-PC at lists.ncsg.is>
> >>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
> >>>> <https://lists.ncsg.is/mailman/listinfo/ncsg-pc>
> >>>
> >>> _______________________________________________
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> >>
> >>
> >> _______________________________________________
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> >>
> >>
> >
> >
>
>
> --
> ------------------------
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