[NCSG-PC] Public comment on Ombuds Office

Sat Jan 6 21:55:36 EET 2018

You are doing a great job.

Le sam. 6 janv. 2018 à 20:08, Dr. Tatiana Tropina <t.tropina at mpicc.de> a
écrit :

> 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> 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-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>
>>> >>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>
>>> >>>> <https://lists.ncsg.is/mailman/listinfo/ncsg-pc>
>>> >>>
>>> >>> _______________________________________________
>>> >>> 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>
>>> >>
>>> >>
>>> >> _______________________________________________
>>> >> NCSG-PC mailing list
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>>> >> <https://lists.ncsg.is/mailman/listinfo/ncsg-pc>
>>> >>
>>> >>
>>> >
>>> >
>>>
>>>
>>> --
>>> ------------------------
>>> **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 <%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
>>> >
>>> (YALI) - ISOC Ambassador (IGF Brazil
>>> <
>>> 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
>>> >)
>>> - 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 (
>>> Mauritius
>>> <
>>> 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>) and (French
>>> <http://cipesa.org/?wpfb_dl=242>)
>>>
>>> _______________________________________________
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>>>
>>>
>>>
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>>
>
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-- 
Regards
@__f_f__
https://www.linkedin.com/in/farellf
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