[NCSG-PC] Public comment on Ombuds Office

Sat Jan 6 06:16:44 EET 2018

Hello Ayden,

I particularly admire the illustration about the dutch airline company. It
makes sense to me to think about such an approach for better diversity,
flexibility and trust.

Regards
@__f_f__
https://www.linkedin.com/in/farellf
________________________________
Mail sent from my mobile phone. Excuse for brievety.

Le 6 janv. 2018 3:38 AM, "Ayden Férdeline" <icann at ferdeline.com> a écrit :

> Rafik, many thanks for your thoughtful and comprehensive reply. I fully
> agree with your remarks. ICANN org is not as unique as it likes to think
> and we should not be re-inventing the wheel when we do not have to.
>
> Many private sector entities do not have staff Ombuds. I recently had an
> issue with a major Dutch airline, and when I wanted to escalate the matter
> further, I could contact an outsourced 'consumer advocate'. In the UK, I
> can escalate my complaint about this airline to my choice of 3 different,
> independent consumer advocates who are paid by the airline and are
> empowered to investigate the merits of my complaint. And they speak my
> native language. Outsourcing these functions makes sense to me. They have
> their own counsel on staff, they offer localized services, and we benefit
> from economies of scale, as they can bring the diversity we want without
> ICANN needing to employ full-time staff, as ICANN only pays for billed
> hours.
>
> We know from the Ombudsman's reports and investigations that most
> complaints that he (and it has always been a he to-date) deals with are
> mainly interpersonal disputes. These are not investigations which require
> substantial technical knowledge; there are mediation providers who
> specialise in conflict resolution and resolving these very issues.
>
> To Arsène's comment about budget, to quote a critic of Margaret Thatcher,
> she knew the price of everything and the value of nothing. We should not
> make the same mistake. We should not sacrifice the independence of the
> Ombuds service - an extremely important accountability function for the
> Empowered Community - in order to save a few dollars (Euros, francs,
> pesos... insert your currency's unit here).
>
> I would also like to propose the insertion of the following language into
> our comment:
>
> "The Ombuds office must have a budget funded at a level sufficient to
> carry out its identified purposes, and will account for its funds directly
> to the Empowered Community. An inadequately funded office will not be able
> to perform the functions required by the bylaws, and thus will lack true
> independence."
>
> Another point. In the past, it has been brought to my attention that the
> Ombudsman has used ICANN's general counsel when investigating matters. In
> my view, the Ombuds Office must have the authority to hire independent
> legal counsel to enforce their powers so that they do not have to rely on
> ICANN's general counsel, who may have a conflict of interest. I imagine
> this was covered by the subgroup, but I couldn't find anything just now
> through a quick ctrl+f search of the draft recommendations. Does anyone
> know if this matter (empowering the Ombuds Office to hire independent,
> external counsel) was resolved already by the subgroup?
>
> Many thanks,
>
> Ayden
>
>
>
> -------- Original Message --------
> Subject: Re: [NCSG-PC] Public comment on Ombuds Office
> Local Time: 5 January 2018 12:41 PM
> UTC Time: 5 January 2018 11:41
> From: rafik.dammak at gmail.com
> To: Farell Folly <farellfolly at gmail.com>
> ncsg-pc <ncsg-pc at lists.ncsg.is>
>
> 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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>> >>> <https://lists.ncsg.is/mailman/listinfo/ncsg-pc>
>> >>
>> >>
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>> >>
>> >>
>> >
>> >
>>
>>
>> --
>> ------------------------
>> **Arsène Tungali* <http://about.me/ArseneTungali>*
>> Co-Founder & Executive Director, *Rudi international
>> <http://www.rudiinternational.org>*,
>> CEO,* Smart Services Sarl <http://www.smart-serv.info>*, *Mabingwa Forum
>> <http://www.mabingwa-forum.com>*
>> Tel: +243 993810967
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>>
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>> la-washington.html>
>> (YALI) - ISOC Ambassador (IGF Brazil
>> <http://www.internetsociety.org/what-we-do/education-and-lea
>> dership-programmes/next-generation-leaders/igf-ambassadors-p
>> rogramme/Past-Ambassadors>
>> & Mexico
>> <http://www.internetsociety.org/what-we-do/education-and-lea
>> dership-programmes/next-generation-leaders/Current-Ambassadors>)
>> - AFRISIG 2016 <http://afrisig.org/afrisig-2016/class-of-2016/> - Blogger
>> <http://tungali.blogspot.com> - ICANN's GNSO Council
>> <https://gnso.icann.org/en/about/gnso-council.htm> Member. AFRINIC
>> Fellow (
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>> <http://www.afrinic.net/en/library/news/1907-afrinic-25-fell
>> owship-winners>)*
>> - *IGFSA Member <http://www.igfsa.org/> - Internet Governance - Internet
>> Freedom.
>>
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