ICANN Ombudsman Blog

I have had a number of complaints about the action of the dispute resolution providers in accepting some objections past the deadline. It appears that these come into two categories, some with very large attachments to emails which were sent before the deadline, but which took some time to transmit, meaning the final parts were sent late. In addition some were sent minutes after the deadline due to technical difficulties. Two complainants have both made a formal complaint to my office stating that I should recommend to the board that late complaints should not be received on the basis that the deadlines were well advertised and achievable. It appears from my discussions that there appears to have been a window of a a few moments permitted by the dispute resolution providers. It should also be added that ICANN did not approve or disapprove the leeway given by the dispute resolution providers. I am interested to hear community comments on this issue. One of the complainants specifically suggested a blog entry, and I have also made a Twitter comment. I look forward to hearing from you either here, on Twitter or to ombudsman@icann.org. Full confidentiality is of course assured if you wish this.

One of the features of the regular ICANN meeting is the public forum which is now held on Thursday afternoon, the last day of the meeting. This is an occasion where the voice of the people can be heard, and the only restriction on the topic is that the speakers must limit their address to 2 minutes and comply with the ICANN rules about Expected Standards of Behaviour. These are “Treat all members of the ICANN community equally, irrespective of nationality, gender, racial or ethnic origin, religion or beliefs, disability, age, or sexual orientation; members of the ICANN community should treat each other with civility both face to face and online.”

So provided the speaker respects those standards, then they are free to speak. This means that the speaker can discuss anything of concern to them. This is perhaps a poignant issue, when the meeting is held in a country where the freedom to speak is not given the same importance as some other participant countries in the ICANN community.

There is often an issue of not wishing to offend a host. But underlying this is sometimes the need to respect freedom of speech. During the ICANN meeting there was an incident where someone tried to speak inappropriately at an earlier meeting, where they were off topic. This resulted in two complaints to my office, over the next day. One of those was from the speaker and the other from a participant in the meeting, who was concerned about a perception that the speaker had been treated badly by not being able to speak. I explained carefully both to the speaker, and to the other complainant, that the initial forum at which he tried to speak was the wrong place, because he was off topic. I explained that we did have the public forum where he could express his views freely. I then made a specific arrangement so that he would be able to speak at the forum and that he also understood the rules about expected standards of behaviour. He completely understood this issue and did explain to me why he wanted to talk.

So in due course on Thursday, he arranged for someone to talk for the 2 minutes on this topic and was pleased to have been given the opportunity.

Sometimes things like freedom of speech are taken for granted, when it is an accepted part of our community. Not all places offer the same freedom, and within the world of ICANN, we can assist in ensuring that there is free and open discussion. I was pleased to be able to assist this person. Otherwise of course this would have been unfair.

Today is the 1st official day of the full ICANN meeting in Beijing. We began with the traditional opening ceremony and another aspirational and inspiring speech from Fadi Chehade on the management tools which he is developing to ensure our bottom-up stakeholders model works with the open and transparent knowledge of what ICANN staff are actually doing. I am not part of that management system of course, because of the confidential nature of the complaints which come into my office. My new case management software however will do much the same for me, to more efficiently handle the increasing workload and respond better to my visitors. It has already been a little busy in my office with a range of complaints, some possibly quite controversial. I am shortly closing my afternoon clinic, to attend the Internet governance update. This proves to be a very topical issue and I am keen to see the latest developments. The ICANN ombudsman does have a role in the governance of ICANN, because of the particular function of fairness in the way in our multi stakeholder organisation works, and as a symbol to the community that they have an independent outlet if they feel the structure is not working. So I am keen to learn from the latest developments.

On Monday 18th March I had the privilege of listening to Professor John Uff QC talk about engineering ethics. He is a civil engineer with a specialty in geotechnics, an Emeritus Professor of Engineering Law at King’s College, London, a global authority on construction law and a Queen’s Counsel. He has served as Vice President of the London Court of International Arbitration and as President of the Society of Construction Arbitrators. I cannot think of many who are as well qualified to discuss this issue! My interest was sparked because I have been asked to comment on ethical issues from time to time. The whole concept of fairness must ultimately be based on ethical considerations, which for professionals, are often described in codes. Professor Uff was invited to address the New Zealand Institute of Professional Engineers, who extended the invitation to lawyers and members of the Arbitrators and Mediators Institute.

The reason Professor Uff was invited was the discussion of ethical duties of engineers arising from the 2 major disasters in New Zealand, relating to engineering failure. The 1st was the Christchurch earthquake and subsequent after-shocks, and the 2nd was the Pike River coal mine explosion. The fact this has caused the New Zealand engineers to reappraise the duties which engineers owed to the public as expressed in their code of ethics, and Professor Uff has written extensively on the subject.

At ICANN we do not have a formal code of ethics for the operation of the domain name system. There are a number of elements however which collectively are the start of such code. The very creation of ICANN as a not-for-profit multi-stakeholder organisation separates it from purely commercial enterprises. The existence of the office of the ombudsman to deal with issues of fairness, delay and diversity does make ICANN different,  and the Ombudsman have also adopted the standards of practice for online dispute resolution. Frank Fowlie also developed the statement for respectful communication. ICANN also has similar guidelines within the communities which make up ICANN. More recently, ICANN has proposed a new draft of Registrants’ Rights and Responsibilities, which is akin to a code of ethics. I have suggested the Ombudsman should have a specific role in this code. Professor Uff did warn the meeting however, that we should not create codes of ethics as a reaction to a problem or in the case of the engineering disasters, as a response to such major calamities. Fortunately at ICANN there has not been a significant issue, except of course this draft was developed because of the new GTLD program. This is different from the engineering code issues, but is analogous because it is a reaction to the event. I am hoping there will be some debate, at Beijing and further, on the use of such a code and perhaps a wider debate.

A case management system is probably not something which attracts much discussion or interest among my readers. ICANN itself has recently moved into the use of a sophisticated project management system to assist with collaboration and planning of work. The office of the ombudsman has had a useful case management system, but unfortunately it has become somewhat outdated. So I have been spending a considerable amount of time recently in researching new systems, and evaluating the products available.

I have now had my new system approved by ICANN and also by our security team, an important element because of my need for confidentiality. I have been spending time with the vendor to create the different alternatives and tools to work with the system, which I hope will enable faster handling of complaints and better reports as to the issues which I am handling. I am incorporating within the system a project management option so that when more complex complaints are received they can be handled with appropriate templates and milestones to assist in a better product.

The interface, for people who want to lodge a complaint, will not change greatly. What I hope to achieve is a system which will enable much more information to be provided, and which will process the complaints more actively. While many of my complaints continue to be outside my jurisdiction, nonetheless they needed to be considered and appropriate referrals made to the correct place to consider the issue. I believe my visitors prefer to know quickly whether I am able to deal with their complaint or whether it has to go somewhere else.

So on the face of it nothing will have any substantial changes, but within about two months we should have a new system with greater analysis and efficiency available.

Perhaps this is not very exciting, but I am sharing this so that my visitors know that the engine is being lifted and replaced by the 2013 model. The driver remains however as the 1954 model.

It is not unusual for me to receive complaints about intemperate or rude comments made within the ICANN community. Some years ago Frank Fowlie produced a most useful paper on the subject which is now placed on my pages at http://www.icann.org/en/help/ombudsman/respectful-communication. There are of course other policies within ICANN which consider similar issues. It is quite understandable when people are passionate about their ideas and policies, that they will occasionally step over the line and send an email or make a post, which often they will subsequently regret. Sadly the nature of the Internet is that sometimes these comments become embedded and impossible to remove because they have been repeated. I suspect in a number of cases the person who made the intemperate comment greatly regrets having done so, but is powerless to remove the trail.I have been following articles about someone who deliberately chooses to make critical, controversial and often very hurtful comments, and sadly this person is located in my own country of New Zealand. Apparently he is aged eighteen. I have a certain experience with teenagers, and understand how the mouth is often engaged before the brain is placed into gear. But one of the lubricants which makes society work is respect for the views of others. Perhaps politeness is regarded as an old-fashioned virtue, and certainly my parents told me that I must be polite. In the dark ages when I was a teenager, I am sure that I did not comply with the requests to be polite. But fortunately any comments I made were not embedded in the darker interstices of the Internet. Now this young New Zealand troll has achieved notoriety throughout the world by intemperate and hurtful comments, which apparently he claims are social experiments.I expect that he is pleased with all of the attention but I rather doubt that we are to see a considered academic consideration of his experiment. I am all for strong debate. But Frank Fowlie’s paper has a continued relevance, although I doubt that the eighteen-year-old has read this in preparation for his social experiment.

I have received a complaint about the process used in the recent Trademark Clearinghouse meetings where decisions were made on the way forward. The complaint in summary says that the decisions were made without full consultation from some contituencies. I have of course not formed any view on this, and need input from people who participated and were pleased with the process, or from others who feel they were excluded. Such submissions can be made to me at ombudsman@icann.org, or on this blog. as comments.

Office of the Ombudsman

Case 12-00241

In a matter of a Complaint by Sophia Bekele for DotAfrica

Report dated 10 December 2012

Introduction

This complaint began with a letter in relation to allegations of conflict of interest on the part of 2 members of the board of ICANN. The complaint was made by Sophia Bekele on behalf of DotAfrica, which is one of 2 applications for the new generic top-level domain .africa. By way of background, the new gTLD program is probably the most significant change to the domain name system for many years. There are over 2000 different applications for approximately 1100 names, and this application (.africa) like many others, has several applicants. There is a considerable amount at stake both financially and for other reasons and therefore the applicants are watching the process very closely.

Facts

The essence of the complaint is a complaint about a conflict of interest with members of the ICANN board in considering issues about new gTLDs applications. This was first raised by DotConnectAfrica which sent 2 separate letters dated July 9, 2012 to report a matter of Conflict of Interest on .Africa new gTLD applications regarding Mr. Mike Silber, a member of the ICANN Board from South Africa, and Mr. Chris Disspain, a member of the ICANN Board from Australia. Subsequently a complaint was made to the office of the ombudsman in relation to the issue on October 2012.

There has been considerable amount of discussion on blogs, Twitter and other sites and in comments on the ICANN website in relation to the new  .africa gTLDs applications. Regrettably much of the discussion has been intemperate. I discuss this further in this report.

To examine the complaint it is necessary to see what the Board has discussed about the gTLD programme.

ICANN has set up a process for managing the new gTLD applications, appointed staff and for the purpose of governance the ICANN board established a specific committee for the purpose of considering issues with regard to the new gTLDs program.

The committee was established on the 10^th April 2012, when the ICANN Board resolved to set up a New gTLD Program Committee with the voting members of the Committee to be Rod Beckstrom, Cherine Chalaby, Chris Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, and Kuo-Wei Wu; with liaisons to the Committee Thomas Roessler; and the Chair of the Committee Cherine Chalaby. At the same time resolutions were passed about conflict of interests policies.

“Resolved (2012.04.10.03), all members of the New gTLD Program Committee reinforce their commitment to the 8 December 2011 Resolution of the Board (Resolution 2011.12.08.19) regarding Board member conflicts, and specifying in part: “Any and all Board members who approve any new gTLD application shall not take a contracted or employment position with any company sponsoring or in any way involved with that new gTLD for 12 months after the Board made the decision on the application.”

Resolved (2012.04.10.04), the Board directs the CEO to prepare a document setting forth a process for the creation of Board Committees to address future situations where there may be multiple Board members with perceived, potential or actual conflicts of interest on an issue.”

The starting point for conflict of interest policy is the policy adopted in December 2011. The purpose of this policy is to identify conflicts of interest but also to ensure that any such conflicts are identified. The Board Governance Committee of ICANN is responsible for administering policy and requires board members to complete statements of position on an annual basis. Http://www.icann.org/en/groups/board/governance/coi/coi-policy-08dec11-en.htm

Under this policy regular statements of interest are lodged with the secretary for ICANN. The latest relevant to this is 12 March 2012-from the ICANN Website:-

“Summary of ICANN Board Statements of Interests

Mike Silber – Director and treasurer of ccTLD .za domain name authority and member of the Management Committee and treasurer of Internet Service provider Association (ISPA) South Africa.

Chris Disspain – Director and CEO of .au Domain Administration Limited, the .au ccTLD manager; .au has sponsorship agreement with ICANN under which .au pays ICANN a yearly amount based on the amount of names under management. Former Officer of ICANN, Paul Levins, has been named as a Director of .au Domain Administration Limited.”

I have asked the complainant to specifically identify the actual conflicts and asked “I would like to have explained the precise details of the conflict of interest which you say exists with these two board members.” I have not received any more detail than the letters, which identify connections, said to be the conflicts of interest.

Investigation

To conduct this investigation it has been necessary to look at the board meeting minutes to analyse whether there have been any decisions made at the new gTLDs subcommittee which actually affect the complainant. It is of course quite possible that there would be issues which affect these 2 applications, but virtually all of the minutes of the committee are available online and available to be read. In addition, I have called for material from Sophia Bekele, discussed the issue with her, and also had discussions with both Chris Disspain and Mike Silber. The secretary to the ICANN board and counsel to ICANN, John Jeffrey, has the responsibility for identifying matters such as conflict of interest and I therefore discussed the matter with him. There is also a considerable amount of material discussing the .africa applications on a number of different blogs and other sites which discuss the applications and the merits. Clearly both parties seeking the .africa gTLD are passionate about their respective applications, but some of the writers appear to have failed to restrain themselves in criticism. For the purpose of this investigation it has not been necessary for me to consider the level of acrimony and accusations, except to say that it is unfortunate.

Specifically, the purpose of the investigation is to analyse whether in fact there has been any actual conflict of interest with the 2 board members in considering issues in relation to the .Africa applications. For this purpose I have looked at the minutes of the committee to determine whether there has been any discussion recorded on the .africa applications. That is of course not the only venue where such matters are discussed, and the minutes of the full board meeting would also be relevant. I have therefore also checked those minutes. They also do not have any mention of the issue. That is perhaps not surprising, considering that individual details of the new gTLDs applications are unlikely to be discussed by the board until very much later in the process. It is clear that the discussions at the board level are at a higher level of policy and process to be put into place to handle program and the applications.

The letters of complaint identify connections between the 2 board members and the competing application. It is however necessary to identify the appropriate standard required for a conflict of interest to exist, and for the conflict to be an issue requiring those board members to recuse themselves on any issues. As part of my investigation I have therefore taken advice on the appropriate test for conflict, in the context of a non-profit company incorporated in California.

Jurisdiction

This is a matter where I clearly have jurisdiction. If there is a conflict of interest then this would result in unfairness, which under Bylaw V, is a matter that I can investigate.

Reasoning

The complainant’s issue is of course one of considerable importance if proved. It must be said however, that the standard for conflict of interest for members of a board of directors of a company, is somewhat different from the standard required for arbitrators or judges. There is of course an important distinction between actual bias and apparent bias. But underlying this is the need for some action by the members of the board which would offend against principles of conflict of interest. However it is clearly apparent when the records are examined, that the 2 board members have not participated in any decision-making about .africa, and indeed there has been little discussion other than at a higher level about the program in general. It is in my view premature to consider whether there can even be apparent bias, because it is too remote to link the suggested connections with the very generic discussions which have taken place, and in addition, where the actual decisions about the applications are still some distance from being made.

Result

As a result of this investigation, I consider that no disqualifying conflict of interest, or indeed any conflict of interest at all, is present in the actions of both Chris Disspain and Mike Silber. It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.

An aspect of this application has been the unfortunate tone of much of the debate on various websites blogs and other places. During the course of this investigation I discussed this with Sophia Bekele (at the Toronto meeting) and suggested that perhaps a less aggressive approach would be appropriate. She readily agreed to this. The discussion and debate continues to be fairly vigorous, but I would suggest to the competing parties for .africa that they should pay attention to the ICANN rules about respectful communication. No doubt feelings are deep and passions strong. However I would urge the parties to consider the ground rules for such debate.

Chris LaHatte

Ombudsman

In a recent paper released by The At-Large Advisory Committee, some interesting comments were made about the expansion of my role as ombudsman. I quote what they say-

“Study the extension of the duties of the Ombudsman to include the role of “independent objector” and consideration of “freedom of Information” requests regarding documents deemed confidential.”

The second part is already partly covered by my Bylaw of course where it says at 3.3

“3. have the right to have access to (but not to publish if otherwise confidential) all necessary information and records from ICANN staff and constituent bodies to enable an informed evaluation of the complaint and to assist in dispute resolution where feasible (subject only to such confidentiality obligations as are imposed by the complainant or any generally applicable confidentiality policies adopted by ICANN);”

This does not of course give me the power to require release of documents under FOI principles, and I would like some debate on whether this power is needed. ICANN does have a policy on open and transparent disclosure, and some comment on the need for this from the community would be useful for me, as I am reviewing the bylaws anyway. At the IOI Conference there was considerable discussion about this role in the context of classical ombudsman, and it is regarded in that context as a very important tool in the investigation work of an ombudsman.I have never had any difficulty in obtaining any documents which I need, but I do believe that I could have a role in assessing whether documents should be released or not. I would expect that in the normal course a request would go to the ICANN general counsel, and that if he considered that a document should be kept confidential, I would have the right under my present bylaw to look at the document. I would not have the power to require release however. The issue is whether I should have that power, and that is something where there should be discussion.

The next point in relation to the role of “Independent objector” is something of an expansion of my role. I do of course have the power to commence an investigation on my own motion, but a wider power to object to a decision or some aspect of policy is a slightly different sort of jurisdiction. An ombudsman will often need to act as the conscience of an organisation, but of course I am not always alerted to the existence of a problem until a complaint is received. Again, discussion from the community would be very useful.

So, for those who read my blog, I would welcome any comments about these matters so that I may form a view.