[NCSG-PC] Public comment on Ombuds Office

Sat Jan 6 22:10:43 EET 2018

Thanks Tatiana,

Great work in indeed.

Kind Regards

Poncelet

On 6 January 2018 at 20:55, Farell Folly <farellfolly at gmail.com> wrote:

> 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
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>>>> >>> 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>
>>>> >>
>>>> >>
>>>> >
>>>> >
>>>>
>>>>
>>>> --
>>>> ------------------------
>>>> **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
>
> _______________________________________________
> NCSG-PC mailing list
> NCSG-PC at lists.ncsg.is
> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>
>

-- 
Poncelet O. Ileleji MBCS
Coordinator
The Gambia YMCAs Computer Training Centre & Digital Studio
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