[NCSG-PC] Public comment on Ombuds Office
Dr. Tatiana Tropina
t.tropina at mpicc.de
Sat Jan 6 21:08:06 EET 2018
Dear all,
thanks a lot for your feedback. I will send the clean document to the
NCSG list tomorrow - let's see what the membership input is.
Thanks to all of you - I am happy we have great discussions.
Cheers,
Tanya
On 06/01/18 05:16, Farell Folly wrote:
> 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
> <mailto: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 <mailto:rafik.dammak at gmail.com>
>> To: Farell Folly <farellfolly at gmail.com
>> <mailto:farellfolly at gmail.com>>
>> ncsg-pc <ncsg-pc at lists.ncsg.is <mailto: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
>> <mailto: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
>> <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 <mailto: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 <mailto: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
>> <mailto: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>
>> <mailto: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>
>> >>> <mailto: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>
>> <mailto: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>
>> <mailto: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>
>> >>>>
>> <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-2dbBMgzwjjxYxl-aHaYIS-iIGpQ/edit?usp=sharing
>> <https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgzwjjxYxl-aHaYIS-iIGpQ/edit?usp=sharing>
>> >>>>
>> <https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgzwjjxYxl-aHaYIS-iIGpQ/edit?usp=sharing
>> <https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgzwjjxYxl-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>
>> <mailto: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>
>>
>> >>>> <https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>> <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
>> <http://www.rudiinternational.org>>*,
>> CEO,* Smart Services Sarl <http://www.smart-serv.info>*,
>> *Mabingwa Forum
>> <http://www.mabingwa-forum.com>*
>> Tel: +243 993810967 <tel:%2B243%20993810967>
>> GPG: 523644A0
>> *Goma, Democratic Republic of Congo*
>>
>> 2015 Mandela Washington Felllow
>> <http://tungali.blogspot.com/2015/06/selected-for-2015-mandela-washington.html
>> <http://tungali.blogspot.com/2015/06/selected-for-2015-mandela-washington.html>>
>> (YALI) - ISOC Ambassador (IGF Brazil
>> <http://www.internetsociety.org/what-we-do/education-and-leadership-programmes/next-generation-leaders/igf-ambassadors-programme/Past-Ambassadors
>> <http://www.internetsociety.org/what-we-do/education-and-leadership-programmes/next-generation-leaders/igf-ambassadors-programme/Past-Ambassadors>>
>> & Mexico
>> <http://www.internetsociety.org/what-we-do/education-and-leadership-programmes/next-generation-leaders/Current-Ambassadors
>> <http://www.internetsociety.org/what-we-do/education-and-leadership-programmes/next-generation-leaders/Current-Ambassadors>>)
>> - AFRISIG 2016
>> <http://afrisig.org/afrisig-2016/class-of-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
>> <https://gnso.icann.org/en/about/gnso-council.htm>>
>> Member. AFRINIC Fellow (
>> Mauritius
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>> <http://www.afrinic.net/en/library/news/1907-afrinic-25-fellowship-winners>>)*
>> - *IGFSA Member <http://www.igfsa.org/> - Internet
>> Governance - Internet
>> Freedom.
>>
>> Check the *2016 State of Internet Freedom in DRC* report
>> (English
>> <http://cipesa.org/?wpfb_dl=234
>> <http://cipesa.org/?wpfb_dl=234>>) and (French
>> <http://cipesa.org/?wpfb_dl=242
>> <http://cipesa.org/?wpfb_dl=242>>)
>>
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