[NCSG-PC] Public comment on Ombuds Office
Arsène Tungali
arsenebaguma at gmail.com
Sat Jan 6 22:56:50 EET 2018
Hi Rafik and Ayden,
Thank you very much for your remarks and explanation that really helped to better understand the issue.
I am therefore happy to go with the comment as it stands and can agree that we should push for an outsourced Ombuds office. Also agree with the suggested paragraph with regards to funding for this office.
With my best regards,
Arsene
-----------------
Arsène Tungali,
about.me/ArseneTungali
+243 993810967
GPG: 523644A0
Goma, Democratic Republic of Congo
Sent from my iPhone (excuse typos)
> On Jan 6, 2018, at 10:10 PM, Poncelet Ileleji <pileleji at ymca.gm> wrote:
>
> 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
>>>>>>> >>> 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>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >
>>>>>>> >
>>>>>>>
>>>>>>>
>>>>>>> --
>>>>>>> ------------------------
>>>>>>> **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
>>>>>>> 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>)
>>>>>>>
>>>>>>> _______________________________________________
>>>>>>> NCSG-PC mailing list
>>>>>>> NCSG-PC at lists.ncsg.is
>>>>>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>>>>>
>>>>>>>
>>>>>>> _______________________________________________
>>>>>>> NCSG-PC mailing list
>>>>>>> NCSG-PC at lists.ncsg.is
>>>>>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>>>>>
>>>>>
>>>>
>>>>
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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
> MDI Road Kanifing South
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